Wednesday, March 29, 2017

The Slingshot, the Facebook Post and “Threatening the President”

This post examines an opinion from the U.S. Court of Appeals for the Seventh Circuit: U.S. v. Dutcher, 2017 WL 1075048. The court begins the opinion by explaining that
[o]n June 30, 2015, Brian Dutcher announced on Facebook that he planned to assassinate President Obama. He then drove to La Crosse, Wisconsin, where the President was scheduled to speak on July 2. Once in La Crosse, Dutcher repeated his plan to several people: a security guard, the police, the Secret Service, a nurse, a doctor, and (again) the police and Secret Service together. No one was amused: Dutcher was charged with and convicted of two counts of threatening the President in violation of 18 U.S. Code § 871(a). On appeal, Dutcher complains about the sufficiency of the evidence and certain instructions the district court gave to the jury. We find no error, and so we affirm.
U.S. v. Dutcher, supra.
The Court of Appeals began its analysis of the argument Dutcher made on appeal by explaining that
[w]e evaluate a challenge to the sufficiency of the evidence de novo, construing the evidence `in the light most favorable to the government and ask[ing] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ United States v. Love, 706 F.3d 832, 837 (7th Cir. 2013). We also take a fresh look at the question whether a disputed jury instruction fairly and accurately states the law; we will `reverse only if the instructions, taken as a whole, misled the jury.’ United States v. Lawrence, 788 F.3d 234, 245 (7th Cir. 2015).

President Obama was scheduled to give a speech at the University of Wisconsin–La Crosse on Thursday, July 2, 2015. On Tuesday, Dutcher posted this on his Facebook page: `thats [sic] it! Thursday I will be in La Crosse. hopefully I will get a clear shot at the pretend president. killing him is our CONSTITUTIONAL DUTY!’ Later posts reprised the theme. In one, Dutcher added that `I have been praying on [sic] going to D.C. for 3 months and now the usurper is coming HERE. . . . pray for me to succeed in my mission.’ The next morning (Wednesday) Dutcher carried out the first part of his plan—he drove the 45 miles from Tomah, where he lived, to La Crosse.

Things went downhill from there. Dutcher stopped by the La Crosse Public Library, where his acquaintance Travis Good worked as a security guard. Dutcher greeted Good and told him `I'm here to kill the President, the usurper, tomorrow at his speech.’ When Good replied that such statements were illegal, Dutcher simply said `[w]atch me’ and walked off. Good alerted his supervisor, who passed the word along to the police, who dispatched two investigators. The investigators found Dutcher nearby in his van and, after he confirmed his threat, they asked him to come to the station for Secret Service questioning. Dutcher agreed, exhibiting a demeanor one of the investigators would later recall as `mellow.’
U.S. v. Dutcher, supra.
The court goes on to explain what happened next:
[t]he description was apt. During his two-hour interview with the Secret Service, a remarkably candid Dutcher claimed that it was his biblical and constitutional duty to assassinate the President, boasted that he could kill a person with a slingshot (one was later found in his van, though Dutcher had no other weapons), informed the agents that he had also made threats on Facebook, and consented to a search of his account. After the interview Dutcher was detained overnight at a hospital for a mental health evaluation. See Wis. Stat. § 51.15. There he reiterated his violent intentions to both a nurse and a doctor. And he was not done yet. Dutcher was arrested the next day and repeated his threats during the ensuing interview. Despite all this, he was found competent for pretrial release—a finding he does not challenge on appeal.
U.S. v. Dutcher, supra.
The Court of Appeals concluded this section of its opinion by noting that
[b]ased on the initial Facebook post and the statement to Good, a grand jury indicted Dutcher on two counts of knowingly and willfully threatening the President in violation of 18 U.S. Code § 871(a). After a two-day trial, the district court instructed the jury, in relevant part, that it could find willfulness if the government proved Dutcher `either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement as a true threat but he made the statement anyway.’ The jury found Dutcher guilty of both counts, and the district judge sentenced him to 36 months' imprisonment and three years of supervised release.
U.S. v. Dutcher, supra.
The court then took up the legal issue in the case, explaining, initially, that
section 871(a) criminalizes `knowingly and willfully’ making `any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.’ The charged statement must be a `true threat,’ which has been defined for First Amendment purposes as `a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ Virginiav. Black, 538 U.S. 343, 359 (2003). In United States v. Fuller, 387 F.3d 643, 646 (7th Cir. 2004), we held that a `true threat’ for purposes of section 871(a) is defined objectively. A communication, we wrote, `is a true threat if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.’ Id. (internal quotation marks omitted). Addressing a different statute, 18 U.S. Code § 875(c), which criminalized the transmission of any threat to kidnap or injure another, the Supreme Court held that the speaker must know that his communication contains a threat. Elonis v. United States, ––– U.S. ––––, 135 S.Ct. 2001,2009–11, 192 L.Ed.2d 1 (2015).

A true threat does not require that the speaker intend to carry it out, or even that she have the capacity to do so. Black, 538 U.S. at 360, 123 S.Ct. 1536 (First Amendment); United States v. Parr, 545 F.3d 491, 498 (7th Cir. 2008) (18 U.S.C. § 2332a, prohibiting a threat to use a weapon of mass destruction against a federal government building). The prohibition against threats protects against the fear they engender as well as the risk that they may be carried out. Black, 538 U.S. at 360, 123 S.Ct. 1536. Still, the scope of a true threat is ultimately quite circumscribed. Section 871(a) does not criminalize offensive jokes or political hyperbole—bad taste, in other words, is not a crime. Watts v. United States, 394 U.S. 705, 707–08, 89 S.Ct. 1399,22 L.Ed.2d 664 (1969)Fuller, 387 F.3d at 647.
U.S. v. Dutcher, supra.
The Court of Appeals then began its analysis of the issues and arguments in this case, explaining, initially, that
Dutcher insists that he was obviously unable to carry out his threats, and so they could have been nothing more than overheated rhetoric. He was certainly not trying to hide anything, and it is also undisputed that he had no ticket to the President's speech and was armed only with a slingshot (albeit a high-powered Wrist Rocket). But the significance of these facts was for the jury, not appellate review. More broadly, Dutcher is missing the point. He was charged with threatening the President under § 871(a), not with the separate crime of attempting to assassinate him under 18 U.S. Code. § 1751. His lack of capacity is relevant only insofar as it suggests that his threats were not genuine. Dutcher's emphasis on his chance of success also overlooks the fact that § 871(a) permits conviction for threats to `inflict bodily harm upon the President.’ Dutcher told investigators that he used his slingshot to hunt small animals, and (actually comparing himself to David) that he could kill a man with it. The jury was entitled, based on this evidence, to find that Dutcher was capable of injuring the President with his slingshot, and it could have convicted him on that basis.

Dutcher also suggests that no one took his statements seriously, and that this indicates that he did not intend them to be true threats. Security camera footage of Good's unruffled response to Dutcher's remarks supports this view—Good remains calm throughout the interaction and even wraps up a bit of computer work before heading off to report the incident. Yet the operative word in that sentence is `report.’ Calm or otherwise, Good took Dutcher seriously enough that he reported him around 30 seconds after their interaction. Moreover, his description was evidently alarming enough to cause his supervisor to contact the police. A reasonable juror could conclude Dutcher knowingly and willfully made a true threat.

Dutcher's contention that his Facebook post was not taken seriously since nobody who saw it informed the police (in fact, he got two `likes’) also falls short of undermining the jury's conclusion. Granted, his case is a bit different from Elonis, the Supreme Court's most recent word on true threats. Elonis's Facebook posts frightened their targets enough to prompt them to contact the authorities. Elonis, 135 S.Ct. at 2005–06. Nothing in Elonis, however, excludes the possibility of an unreported true threat. Other evidence indicates that some of Dutcher's readers took him seriously. Gregory Remen, for one, responded to the charged post by encouraging Dutcher to `[t]ry voting’ and asked `how will killing the pres change anything then? ?’ The apprehensive response to Dutcher's follow-up posts underscores the point—one reader urged him to `Stay calm my friend. Please!’ The jury was entitled to rely on these responses, along with Dutcher's later behavior, to find that the threats were genuine.
U.S. v. Dutcher, supra (emphasis in the original).
Since Dutcher was tried by a jury, the Court of Appeals went on to examine the instructions that were given to the jury, noting, initially, that the
jury instructions said that Dutcher acted `willfully’ if he `either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement as a true threat but he made the statement anyway.’ Dutcher reads the latter clause to allow the jury to find willfulness so long as he made a statement `that other people reasonably would view . . . as a true threat’—that is, if it found only objective willfulness, without the subjective willfulness required by the statute under consideration in Elonis. But this argument overlooks the fact that the language he highlights was prefaced with the words `that he knew.’ The instructions did not permit the jury to find willful behavior simply because a listener `reasonably would view’ Dutcher's statement as a threat. Instead, it had to find that he made the statement despite knowing, subjectively, that the listener would see it that way. This is consistent with Elonis.

The worst we can say about the instruction is that the court might have given Dutcher an unwarranted break when it used the term `reasonably.’ As worded, the instruction indicated that Dutcher not only had to know that his listener would take his statement as a true threat, but also that the listener's understanding was reasonable. 

Consequently, if Dutcher knew that a hypersensitive listener would unreasonably see his statement as a threat, there could be no willfulness. In any event, we review jury instructions as a whole; so long as `the instructions treat the issues fairly and accurately, they will not be disturbed upon appeal.’ United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007) (citation omitted). Dutcher's defense at trial was that his statements were political hyperbole, not credible threats. The instructions fully conveyed that point to the jury. Elsewhere, in language Dutcher does not challenge, they defined a `true threat’ as `a serious expression of an intent to commit an act of unlawful violence,’ and they distinguished such statements from `[i]dle or careless talk, political hyperbole or something said in a careless or joking manner. . . .’ This was more than enough to present Dutcher's theory of defense to the jury.
U.S. v. Dutcher, supra.
The court went on to explain that
Dutcher urges in the alternate that § 871(a)'s mens rea of `knowingly and willfully’ requires a defendant to know that her conduct is illegal. There is force to the argument that when a statute uses both terms, it is asking for something more than either term would require on its own. Thus, in United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996), aff'd on other grounds, 522 U.S. 23, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997), we read the same phrase in a student loan fraud statute to require proof of a defendant's knowledge that her intentional conduct was unlawful. See also United States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008) (expressing sympathy for the argument in dicta).

This type of heightened proof requirement, however, is typically limited to a narrow group of `highly technical [criminal] statutes that present [ ] the danger of ensnaring individuals engaged in apparently innocent conduct.’ Bryan v. United States, 524 U.S. 184, 194 (1998) (citing taxes and financial transactions as examples). Bates, which concerned the arcana of federal student loans, falls in that category. A statute prohibiting serious threats to the President does not. Elonis itself highlights the distinction. It expressly rejected the notion that the threat statute there, 18 U.S. Code § 875(c), required the government to show that the defendant knew that his conduct was illegal. Elonis, 135 S.Ct. at 2009. Instead, the Court followed `[t]he familiar maxim ‘ignorance of the law is no excuse’. . . .’ Id. The same approach is proper here. The President's safety does not turn on a defendant's familiarity with the United States Code.
U.S. v. Dutcher, supra.
The Court of Appeals ended its opinion with the following:
The evidence before the jury was sufficient to support both of Dutcher's convictions, and the jury instructions fairly presented the relevant issues. We therefore AFFIRM the judgment of the district court.
U.S. v. Dutcher, supra.


Monday, March 27, 2017

Retail Theft, Criminal Conspiracy and the Computer Monitors

This post examines an opinion from the Superior Court of Pennsylvania: Commonwealth v. Chikonyera, 2017 WL 815391 (2017).  The court begins the opinion by explaining that
William V. Chikonyera, appeals from the judgment of sentence of 4 years' probation, imposed after he was convicted, following a non-jury trial, of retail theft, 18 Pa.C.S. § 3929(a)(1), and criminal conspiracy18 Pa.C.S. § 903(a)(1). On appeal, Appellant solely challenges the sufficiency of the evidence to sustain his convictions.
Commonwealth v. Chikonyera, supra.
The opinion goes on to explain that
[b]riefly, Appellant was arrested and charged with the above-stated offenses based on his and a cohort's theft of two computer monitors from a Walmart store located in Philadelphia. Appellant proceeded to a non-jury trial and was ultimately convicted of retail theft and criminal conspiracy. On November 24, 2015, he was sentenced to an aggregate term of 4 years' probation. Appellant filed a timely notice of appeal, and he also timely complied with the trial court's order to file a [Pennsylvania Rules of Appellate Procedure] 1925(b) statement. The court filed a responsive opinion on March 21, 2016. Herein, Appellant presents one issue for our review, challenging the sufficiency of the evidence to sustain his convictions.
Commonwealth v. Chikonyera, supra.
The brief filed on behalf of Chikonyera on appeal added more details to those set out in the court’s opinion:
The case involves theft from a Walmart. The main witness was Walmart security officer Omar Santos. Mr. Santos testified at the trial that on May 12, 2014, at 11:20AM, he worked as a security officer at the Walmart located at One Franklin Mills Boulevard in the city and county of Philadelphia. N.T 9/18/15 pg.8. Mr. Santos stated that he observed a male named Mr. Markeece, from looking at the security camera, place two computer monitors into a shopping cart. N.T 9/18/15, pg. 10.

Santos stated that Markeece left the shopping cart with Appellant William Chikonyera who proceeded to rip the security devices off of the two computer monitors. N.T 9/18/15 pg.10. Santos stated the security devices were ripped off the monitors he contacts the police. N.T 9/18/15 pg.14. Shortly thereafter, Mr. Santos watched Markeece and the Appellant exit the store. Markeece pushed the shopping cart, while the Appellant walked along side the shopping cart. N.T 9/18/15 pg.11.

Mr. Santos stated that he approached both individuals outside on the sidewalk and identified himself as a security officer. N.T 9/18/15 pg.13. The police arrived on scene. N.T 9/18/15 pg.14. Santos stated Markeece abandoned the computer monitors in the shopping cart on the sidewalk, and took off running. N.T 9/18/15 pg.12.

Officer Jared Attewell, of the Philadelphia Police Department, arrived to the Walmart in response to Mr. Santos' phone call. N.T 9/18/15 pg.14. Upon his arrival, Officer Attewell observed Mr. Santos pointing to Markeece, who he observed run and attempt to get into the already moving vehicle being driven by the Appellant. N.T 9/18/15 pg.49. Officer Attewell then stopped the vehicle and placed both the Appellant and Markeece under arrest. Mr. Santos identified Markeece and the Appellants as the two individuals that took the shopping cart out of the store without paying. N.T 9/18/15 pg.50.
Brief of Appellant, Commonwealth v. Chikonyera, 2016 WL 8229147. 
The opinion goes on to explain that
[b]riefly, Appellant was arrested and charged with the above-stated offenses based on his and a cohort's theft of two computer monitors from a Walmart store located in Philadelphia. Appellant proceeded to a non-jury trial and was ultimately convicted of retail theft and criminal conspiracy. On November 24, 2015, he was sentenced to an aggregate term of 4 years' probation. Appellant filed a timely notice of appeal, and he also timely complied with the trial court's order to file a [Pennsylvania Rules of Appellate Procedure] 1925(b) statement. The court filed a responsive opinion on March 21, 2016. Herein, Appellant presents one issue for our review, challenging the sufficiency of the evidence to sustain his convictions.
Commonwealth v. Chikonyera, supra.
The court then goes on to explain that
[i]n reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.
Commonwealth v. Chikonyera 39 A.3d 996, 1001 (Pa. Super. 2011).
The court goes on to describe the offenses with which Koch was charged:
Retail theft is defined in the Crimes Code, as follows:

(a) Offense defined.—A person is guilty of a retail theft if he:

(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;

18 Pa.C.S. § 3929(a)(1). Additionally, criminal conspiracy is defined as:

(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S. § 903(a)(1)–(2).
Commonwealth v. Chikonyera, supra.
The opinion goes on to explain that
[i]n this case, Appellant presents a very cursory argument in challenging the sufficiency of the evidence to sustain his convictions. Essentially, he maintains that the evidence demonstrated only that he was present at the scene while his cohort committed the retail theft. After reviewing the record, we disagree. The evidence presented at Appellant's trial, as summarized by the trial court below, was clearly sufficient to prove that he committed both retail theft and criminal conspiracy:

Omar Santos (`Mr. Santos’) testified that on May 12[ ], 2014, at 11:20 [a.m.], he worked as a security officer at the Walmart located at One Franklin Mills Boulevard in the city and county of Philadelphia. From the store security cameras, Mr. Santos observed a male named Mr. Markeece (`Markeece’) place two computer monitors into a shopping cart. Markeece then left the shopping cart with [ ] Appellant who proceeded to rip the security devices off [ ] the two computer monitors. Accordingly, once Mr. Santos saw the security devices being ripped off the monitors he contacted the police. Shortly after, Mr. Santos watched Markeece and [ ] Appellant exit the store. Markeece pushed the shopping cart, while [ ] Appellant walked along side [sic] of the shopping cart. [ ] Appellant and Markeece passed all points of sale, made no attempt to purchase the computer monitors, and no receipts were provided for the items.
Mr. Santos approached both suspects outside on the sidewalk and identified himself as a security officer. In response, Appellant started quickly walking to his car, while Markeece talked to Mr. Santos. As Mr. Santos spoke to Markeece, the police arrived on scene. Markeece abandoned the computer monitors in the shopping cart on the sidewalk, and took off running.

Officer Jared Attewell, of the Philadelphia Police Department, arrived to the Walmart in response to Mr. Santos'[s] phone call. Upon his arrival, Officer Attewell observed Mr. Santos['s] pointing to Markeece, who [the officer] observed run and attempt to get into the already moving vehicle being driven by [ ] Appellant. Officer Attewell then stopped the vehicle and placed both [ ] Appellant and Markeece under arrest. Mr. Santos identified Markeece and [ ] Appellant as the two individuals that took the shopping cart out of the store without paying.

Trial Court Opinion, 3/21/16, at 1–2 (citations to the record omitted)
Commonwealth v. Chikonyera, supra.
The prosecution’s brief on appeal notes that
[t]he value of the collective haul was $722.81. Markeece walked behind defendant, pushing the cart, as the two left the store together. . . . 
Commonwealth’s Brief for Appellee, 2016 WL 8229148 (Pa.Super.).
The Superior Court went on to explain that
[t]his evidence clearly belies Appellant's argument that he was merely present at the scene when Markeece stole the computer monitors. Appellant and Markeece obviously intended to steal the monitors, agreed to do so together, and both men committed overt acts in furtherance of that conspiracy. See Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001) (`A conspiracy conviction requires proof of (1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy’) (citation omitted).

Specifically, Markeece put the monitors into the cart, and Appellant removed their security tags, thus suggesting an intent to steal those items. The two men then walked out of the store together, with the cart containing the monitors. Neither Appellant nor Markeece attempted to pay for the monitors, further demonstrating their intent to steal them. Finally, when confronted by Mr. Santos outside the store, Appellant quickly walked away, and then subsequently assisted Markeece in fleeing from Officer Attewell by driving the get-away car.

Appellant's and Markeece's flight indicated their consciousness of guilt, and the court was free to consider it, along with the other evidence produced by the Commonwealth, in finding Appellant guilty. See Commonwealth v. Hargrave, 745 A.2d 20, 23 (Pa. Super. 2000) (citations omitted). Therefore, the evidence was more than sufficient to prove that Appellant committed retail theft and criminal conspiracy.
Judgment of sentence affirmed.
Commonwealth v. Chikonyera, supra.


Friday, March 24, 2017

The Psychologist, the “Therapeutic Relationship” and “Unauthorized Possession of Computer Code

This post examines a recent opinion from the Court of Special Appeals of Maryland: Ali v. State, 2017 WL 128636 (2017). The court begins the opinion by explaining that
After Sahar Begum Ali's psychologist terminated their therapeutic relationship, Ms. Ali repeatedly threatened and harassed her, sending her numerous text messages, hacking into her private email account, and copying a privileged communication between her and her attorney. The State charged Ms. Ali with 13 counts of illegal access to computers, one count of identity theft, one count of unauthorized possession of a computer code, and other offenses. A Baltimore County jury convicted Ms. Ali, and this Court affirmed the computer-related charges. Ali v. State, 199 Md. App. 204 (2011).

In a petition for post-conviction relief, Ms. Ali contended that she received ineffective assistance of counsel because her defense attorney did not object to what she characterized as expert testimony by a police detective. The circuit court denied her petition.
Ali v. State, supra.
The substantive portion of the opinion explains, in some detail, how and why the prosecution was brought:
Ms. Ali became a patient of Tina M. Jenkins, Ph.D., a licensed clinical psychologist, in March of 2008. Dr. Jenkins terminated the relationship in September of that year, but allowed it to resume on December 30, 2008, provided that the interactions were limited to one in-person session per week and up to two 15–minute phone calls per week.

Ms. Ali exceeded these limitations, sending text messages to Dr. Jenkins in-between sessions, calling her constantly, and emailing her frequently. At one point, Ms. Ali suggested to Dr. Jenkins that she and her father had contemplated suing her for professional malpractice.

After exchanging privileged emails with her attorney and consulting her professional association, Dr. Jenkins decided to terminate the relationship once again. In a letter dated February 20, 2009, Dr. Jenkins informed Ms. Ali of the termination, citing `recent threats and innuendos of litigation from you and your father.’ Dr. Jenkins told Ms. Ali that she would remain available on an “emergency basis” for one month while Ms. Ali located a new therapist.

On February 23, 2009, Dr. Jenkins met with Ms. Ali one last time to discuss the details of the termination. At that meeting, Dr. Jenkins gave Ms. Ali a copy of the February 20 letter.

Ms. Ali did not respond well to the termination. She sent at least 15 text messages to Dr. Jenkins over the next four days. In some messages, she threatened legal action. In others, she implored Dr. Jenkins to respond to her. One of the messages attached a photograph showing a hypodermic needle in Ms. Ali's arm, with the caption: `Is this what you want me to do?’
Ali v. State, supra.
The opinion goes on to explain that
[o]n or about March 6, 2009, Ms. Ali sent an email, attaching a Microsoft Word document, to the Hotmail email account that Dr. Jenkins used to communicate with her patients. The document contained a copy of a private email from Dr. Jenkins to her attorney, accompanied by Ms. Ali's commentary in red type. Ms. Ali offered no explanation of how she obtained this email other than to write that it “fell into [her] lap.” At around the same time, Dr. Jenkins began to have trouble logging into her Hotmail email account and began to receive messages that her user ID and password were incorrect. The doctor experienced no such problems with another email account that she did not use to communicate with patients.

Over the next two days, Ms. Ali sent another 26 text messages to Dr. Jenkins. She implored Dr. Jenkins to respond to her. She said she was `[l]osing it.’ One of the messages contained a photograph of Ms. Ali holding a gun to her head.

Because of Ms. Ali's `threatening and harassing’ behavior, Dr. Jenkins sent her a final termination letter on March 7, 2009. That letter said Dr. Jenkins would obtain a peace order against Ms. Ali if her behavior continued. On March 12, 2009, Dr. Jenkins obtained the peace order, to which Ms. Ali consented.

In April 2009, Detective Delbusso, the contact person for internet crimes at the Howard County Police Department, executed a search of Ms. Ali's Baltimore County residence. He uncovered a hard copy of Dr. Jenkins's private email to her attorney, along with a series of handwritten notes listing Dr. Jenkins's home telephone number, her husband's name, the last four digits of Dr. Jenkins's social security number, and the names of several other patients whom she was treating.
Ali v. State, supra.The court included a footnote at the end of the paragraph above, in which it explained that

[i]n addition, during his investigation, Detective Delbusso subpoenaed records from America Online regarding an account that Ms. Ali set up under Dr. Jenkins's name in March of 2009. Dr. Jenkins did not have an email account with America Online.
Ali v. State, supra.
The opinion then explains that the
State charged Ms. Ali with 13 counts of illegal access to computers, one count of identity theft, one count of unauthorized possession of a computer access code, one count of false application to purchase a regulated firearm, three counts of failure to comply with a peace order, one count of stalking, and one count of harassment.
Ali v. State, supra.
The Court of Special Appeals went on to explain what happened at the trial:
Ms. Ali's defense counsel did not deny that she had accessed Dr. Jenkins’s Jenkins's email account. Instead, to gain credibility with the jury, counsel adopted a strategy of admitting the obvious while attempting to establish that Ms. Ali's conduct was not `willful’ or criminally culpable, but was a troubled young woman's cry for help to a therapist who had abandoned her. Although conduct is typically defined as `willful’ if it merely is `deliberate and not the result of surprise, confusion or bona fide mistake’ (Furda v. State, 194 Md. App. 1, 31 (2010) (citation and quotation marks omitted)), Ms. Ali's counsel persuaded the trial court to instruct the jury that willfulness involves a significantly higher level of culpability—knowingly engaging in conduct for which there is no reasonable excuse. Defense counsel anticipated that Ms. Ali would take the stand in her own defense, present herself as a sympathetic person who desperately needed therapy, and attempt to persuade the jury that she had not acted `willfully.’

Detective Delbusso was one of the State's witnesses. He had subpoenaed certified records from internet service providers, which disclosed the Internet Protocol addresses (`IP address’) associated with Ms. Ali's home, her place of employment, her father's home, Dr. Jenkins's home, and Dr. Jenkins's office. Citing his `training, knowledge and experience,’ the detective explained that an IP address is `a unique number that is assigned to your access for the Internet when you go on the Internet.’ He likened an IP address to `fingerprints.’
Ali v. State, supra.
The opinion then provides more details about Delbusso’s testimony at trial:
The detective testified that every time Dr. Jenkins or someone else accessed Dr. Jenkins's email accounts, an “access history log” would disclose the IP address of the device or network that was used to access the account. The State introduced an exhibit that showed each of the IP addresses that, it said, were associated with Ms. Ali.

The detective compiled a spreadsheet that contained a summary of information from the “access history log” for Dr. Jenkins's email accounts. The spreadsheet showed when an IP address associated with Ms. Ali had accessed Dr. Jenkins's email accounts. The detective concluded that Ms. Ali had accessed Dr. Jenkins's accounts around 74 times between January 29, 2009, and March 14, 2009.

Although the State had not designated Detective Delbusso as an expert, trial counsel did not object to the detective's conclusion or to any of the bases for it, including his statement about the unique nature of each IP address.

After the detective testified, and only minutes before Ms. Ali was supposed to take the stand, she informed her counsel that she was no longer going to testify. The jury convicted Ms. Ali of all charges.
Ali v. State, supra.
The court then took up the issue of the post-conviction proceedings in this case, explaining that
Ms. Ali filed a petition for post-conviction relief on grounds of ineffective assistance of counsel. In support of her petition, Ms. Ali cited numerous instances of deficient conduct, including counsel's failure to object to expert testimony from Detective Delbusso. After considering testimony from Ms. Ali and her trial counsel, the Circuit Court for Baltimore County denied Ms. Ali's request.

Ms. Ali filed requested leave to appeal on several grounds. This Court granted her leave to appeal on the issue of counsel's failure to object to Detective Delbusso's testimony.
Ali v. State, supra.
The court then explains that Ali only raised one issue in her appeal:
Ms. Ali presents a single question for our review: `Whether the post-conviction court erred in concluding that defense counsel did not provide constitutionally ineffective assistance by failing to object to testimony by a lay witness regarding internet protocol addresses and records related to these addresses?’
Ali v. State, supra.
The Court of Special Appeals then took up Ms. Ali’s issue, noting that
Ms. Ali presents a single question for our review: `Whether the post-conviction court erred in concluding that defense counsel did not provide constitutionally ineffective assistance by failing to object to testimony by a lay witness regarding internet protocol addresses and records related to these addresses?’
Ali v. State, supra.
It began its analysis of that issue by explaining that
[w]hether Ms. Ali received ineffective assistance of counsel is `a mixed question of fact and law.’ State v. Purvey, 129 Md. App. 1, 10 (1999). `[W]e will defer to the [post-conviction] court's findings of historical fact, absent clear error.’ Cirincione v. State, 119 Md. App. 471, 485 (1998) (citation omitted). But we exercise our `own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any.’ State v. Jones, 138 Md. App. 178, 209 (2001), aff'd, 379 Md. 704 (2004).

The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment and Article 21 of the Maryland Declaration of Rights, guarantee a defendant the right to counsel in a criminal proceeding. To ensure that the right to counsel provides meaningful protection, the right has been construed to require the “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759 (1970).

For Ms. Ali to make out a claim of ineffective assistance of counsel in violation of her constitutional rights, she must satisfy the two-prong test articulated in Strickland. The first prong requires Ms. Ali to show that her counsel's performance was deficient because he `made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [to Ms. Ali] by the Sixth Amendment.’ Strickland, 466 U.S. at 687. The second prong requires Ms. Ali show that counsel's performance was so deficient that she was prejudiced by it. Id.

To satisfy the first prong, Ms. Ali must: (1) identify the acts or omissions of trial counsel that were not the result of reasonable professional judgment; (2) show that trial counsel's representation fell below an objective standard of reasonableness considering all the circumstances known to counsel at the time, including prevailing professional norms; and (3) overcome the strong presumption that trial counsel's identified acts or omissions, under the circumstances, are considered sound strategy. Id. at 690. The Sixth Amendment does not guarantee Ms. Ali perfect representation; for representation to be constitutionally deficient, trial counsel's acts or omissions must be `outside the wide range of professionally competent assistance.’ Id. at 690.

To satisfy the second prong, Ms. Ali must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ Id. at 694; Harris v. State, 303 Md. 685, 700 (1985). In these circumstances, a `reasonable probability’ means `a probability sufficient to undermine confidence in the outcome.’ State v. Borchardt, 396 Md. 586, 602 (2007).

The Strickland test for ineffective assistance of counsel is conjunctive and, therefore, requires Ms. Ali to establish both prongs of the test before she is entitled to relief. See Oken v. State, 343 Md. 256, 284–85 (1996), cert. denied, 519 U.S. 1079 (1997); State v. Calhoun, 306 Md. 692, 729 (1986).
Ali v. State, supra.
The Court of Special Appeals then began its analysis of Ms. Ali’s ineffective assistance of counsel argument, noting, initially, that
Ms. Ali complains that her trial counsel failed to object when Detective Delbusso presented what she describes as expert testimony concerning the `unique’ nature of an IP address and his conclusion that Ms. Ali, through IP addresses that the detective associated with her, accessed Dr. Jenkins's accounts more than 70 times. Although the post-conviction court asserted that `Detective Delbusso was simply explaining what an IP address [wa]s for purposes of clarification,’ we assume for the sake of argument that the detective testified as an expert.

We do so for three reasons. First, the nature of an IP address, and particularly the arcane question of whether each IP address is `unique’ to a particular device or network, is a question of computer science that is beyond the ken of ordinary laypersons and, hence, `ordinarily should be the subject of expert testimony.’ Seee.g.Wood v. Toyota Motor Corp., 134 Md. App. 512, 518 (2000). Second, in testifying about the allegedly unique nature of each IP address and likening an IP address to a fingerprint, Detective Delbusso cited his `training, knowledge, and experience,’ which suggests that his testimony amounted to expert, rather than lay, opinion. See Ragland v. State, 385 Md. 706, 725 (2005) (holding that Rules 5–701 and 5–702 `prohibit the admission as ‘lay opinion’ of testimony based upon specialized knowledge, skill, experience, training, or education’). Third, the detective based his conclusions on subpoenaed documents that were not themselves self-explanatory, but required some degree of specialized training and erudition to interpret. See State v. Payne, 440 Md. 680, 700 (2014). Most notably, the `access history log’ for Dr. Jenkin’s email account contains columns labeled `pass’ and `fail.’ The meaning of those columns and their contents would be opaque at best to ordinary laypersons, but the detective, implicitly relying on his specialized training, purported to interpret them to indicate whether an attempt to access the account had succeeded.
Ali v. State, supra.
The appellate court then took up the next issue, i.e.,
[a]ssuming for the sake of argument that Detective Delbusso was allowed to give expert testimony despite the State's failure to disclose him as an expert, we turn to the question of whether counsel's failure to object was an error `so serious that counsel was not functioning as the ‘counsel’ guaranteed [to Ms. Ali] by the Sixth Amendment.’ Strickland, 466 U.S. at 687. We conclude that the error, if any, came nowhere near that level of seriousness, because counsel's approach to the witness appears to have been the product of a reasonable strategy based on the information available to him at the time. See State v. Thomas, 325 Md. 160, 171 (1992) (requiring trial counsel's alleged deficient acts to be judged based on the facts known by her or him at the time they occurred) (citation omitted).
Ali v. State, supra.
And it went on to explain that
[a]s previously explained, counsel adopted a strategy of conceding that Ms. Ali had committed the actus reus of the computer-related offenses with which she was charged, but contesting whether she had possessed the requisite mens rea—i.e., contesting whether she had acted willfully. Counsel adopted that strategy because, even without Detective Delbusso's testimony, the State had a considerable amount of evidence that Ms. Ali had hacked into Dr. Jenkins's email account. That evidence included Dr. Jenkins's email to her attorney, which Ms. Ali had obtained without permission, altered, and sent back to her therapist; the hard copy of the privileged email, which the detective found in Ms. Ali's residence when he executed a search warrant; a document containing the last four digits of Dr. Jenkins's social security number, which the detective also found when he executed the warrant; and the evidence that Dr. Jenkins was having trouble logging into the email account that was known to patients such as Ms. Ali, but was having no such problems with her other email account, which her patients did not know about. In view of the considerable evidence that Ms. Ali had hacked into Dr. Jenkins's account and had thereby obtained the doctor's confidential communication with her attorney, it was hardly an unreasonable strategy for counsel to attempt to preserve his credibility with the jury by conceding the obvious, but arguing that Ms. Ali was a disturbed young woman who did not act with criminal intent.
Ali v. State, supra.
The opinion wrapped up the analysis of this issue by explaining that
[w]hen Detective Delbusso testified, counsel was proceeding under the premise that Ms. Ali would take the stand, admit what she had done, and explain to the jury that she had a reasonable excuse and was not acting `willfully’—that she was begging for help and attention from a therapist who, she believed, had abandoned her in a time of need. In faulting counsel for not attempting to block the detective's testimony, Ms. Ali fails to note that, when the detective testified, her counsel anticipated that she would take the stand shortly thereafter and admit to having done exactly what the detective said she had done. Counsel's alleged `error’ becomes apparent only in hindsight, after Ms. Ali pulled the rug out from under her attorney by deciding, at what he said was `the moment that [he] was ready to call her to the stand,’ that she would not testify in her own defense. Ms. Ali did not receive ineffective assistance of counsel merely because her attorney failed to foresee that she would change her mind about testifying.

According to her post-conviction testimony, Ms. Ali appears not to have complained of trial counsel's strategy before or during trial. Based on the evidence and circumstances that were known to trial counsel at the time, we find no reason for her to complain about it either.
Ali v. State, supra.
The appeals court then took up the final issue, e.g., the “substantial probability of a different result.” Ali v. State, supra. It began by explaining that to
be entitled to relief under Strickland, Ms. Ali was required to show that, had trial counsel objected to Detective Delbusso's testimony, there is a substantial probability that his testimony would have been excluded at trial. See Jones, 138 Md. App. at 206. Ms. Ali did not sustain her burden. Even assuming that trial counsel should have objected to Detective Delbusso's testimony, Ms. Ali's claim for ineffective assistance of counsel would still fail, because she did not show a reasonable probability that the result would have been different but for counsel's alleged error.

Ms. Ali contends that, had her counsel objected, the trial court would have excluded the detective's testimony as a discovery sanction. She also contends that the detective did not have adequate qualifications to testify as an expert. We disagree on both counts.

Under Md. Rule 4–263(n), the rule governing discovery in criminal cases, `[t]he failure of a party to comply with a discovery obligation ... does not automatically disqualify a witness from testifying.’ Instead, the trial court has discretion to fashion remedies for discovery violations. See Bellard v. State, 229 Md. App. 312, 340 (2016) (citing Thomas v. State, 397 Md. 557, 570 (2007)). `[B]ecause the exclusion of prosecution evidence as a discovery sanction may result in a windfall to the defense, exclusion of evidence should be ordered only in extreme cases.’ Thomas, 397 Md. at 573 (citations omitted).

The purpose of Rule 4–263 is `to assist the defendant in preparing his or her defense, and to protect the defendant from surprise.’ Ragland, 385 Md. at 716–17 (citation omitted).
Ali v. State, supra.
The opinion goes on to explain that
Detective Delbusso's testimony, however, would not have come as any surprise. Although the State did not name the detective as an expert and disclose the substance of his testimony in narrative form, there is no dispute that it produced all of the documents on which he relied, most notably including the access-history log in which he summarized each occasion on which an IP address associated with Ms. Ali had accessed Dr. Jenkins's Hotmail account. Because trial counsel was on notice of these conclusions and had sufficient time to prepare for the testimony before trial, it is extremely unlikely that the trial judge would have exercised her discretion to prohibit the detective from testifying had counsel objected. See, e.g.Bellard, 229 Md. App. at 341–42 (concluding that trial court was `well within’ its discretion to deny motion to exclude expert testimony as sanction for belated disclosure where court found that defendant `had `sufficient time’ and had ‘been given notice of the existence of the subject matter about which [the expert might] be expressing an opinion’).

Moreover, had her counsel objected to the detective's qualifications, Ms. Ali has given little reason to doubt that the State could have shown him to have sufficient `knowledge, skill, experience, training, or education’ to testify as an expert. Md. Rule 5–702. He is the contact person for internet-related crime at the police force in one of the largest counties in the State. He disclosed that he had received training in internet-crime investigations from the National White Collar Crime Complaint Center, in conjunction with the Federal Bureau of Investigation, and had attended two seminars conducted by the Maryland State Police. Because he mentioned those aspects of his training despite the lack of any focused effort to qualify him as an expert, there is little reason to doubt that he could have supplied additional details about the nature of his education and experience had counsel challenged his qualifications. Furthermore, although Ms. Ali had the `heavy burden’ (State v. Gross, 134 Md. App. 528, 555 (2000)) of showing a reasonable probability that the court might have excluded the detective had counsel objected to his testimony, she did not call the detective at the post-conviction hearing to enable a court to conduct a full investigation into whether he “`”exhibit[ed] such a degree of knowledge as to make it appear that his opinion [was] of some value,”’ Roy v. Dackman, 445 Md. 23, 42 (2015) (quoting City Homes v. Hazelwood, 210 Md. App. 615, 677 (2013)), the standard for evaluating the adequacy of an expert's qualifications under Rule 5–702. In view of that failure of proof on an issue on which she bore the burden, Ms. Ali did not show a reasonable probability that the result at trial would have been different had her attorney objected to the detective's qualifications to testify as an expert.

Finally, although the detective's testimony may have assisted the State in quantifying the specific number of occasions on which Ms. Ali gained unauthorized access to Dr. Jenkins's email account, the other evidence in the case left little doubt that Ms. Ali had committed that offense. It was beyond dispute that Ms. Ali had purloined a privileged communication between Dr. Jenkins and her attorney, had edited that communication and sent it back to the therapist with no legitimate explanation about how she had obtained it, and had kept a hard copy of the privileged communication at her residence, where it and other pieces of inculpatory evidence (such as the last four digits of Dr. Jenkins's social security number) were found when the police executed a search warrant. Considering `the totality of the evidence before the . . . jury’ (Strickland v. Washington, 466 U.S. at 695), the alleged error in not objecting to Detective Delbusso's testimony is not `sufficient to undermine confidence in the outcome.’ Id. at 694.
Ali v. State, supra.
The court therefore concluded the opinion with this ruling:
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Ali v. State, supra (emphasis and capitalization in the original).

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