Diallo v. State

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 was ⁶⁸⁴ an 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.

We ⁶⁸⁵ adopt 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 ⁶⁸⁶ 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, 28 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 ⁶⁸⁷ 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, ⁶⁸⁸ 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 ⁶⁸⁹ 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 until 14 December 2007.

On that date, the defense requested another continuance on the basis that it was in contact with the United States mission to the UN and was awaiting a response. The trial court denied the request and the motion. The parties proceeded to trial. As stated previously, Petitioner entered a plea of not guilty and elected a bench trial on a not guilty/statement of facts.

The court found defendant guilty of first degree assault and use of a handgun in the commission of a crime of violence. Ten days later, defense counsel filed a motion for new trial contending that he “recently discovered evidence” which required the court to exercise its revisory power under Maryland Rule 4-331 to set aside the verdict. The “recently discovered evidence,” however, concededly was not available yet, so the motion stated that, upon actual receipt of the newly-discovered evidence, [defendant] will amend this Motion for New Trial and supplement it with a supporting Memorandum of Law to follow....” The court held a hearing on the new trial motion on 8 February 2008, approximately six weeks after Petitioner filed it, at which time defense counsel requested another postponement. The only “new” evidence that defense counsel was able to muster at that time was a letter from Congressman Donald Payne of New Jersey’s 10th Congressional District, which, defense counsel asserted, stated that it was the Congressman’s “personal knowledge that Ambassador Diallo does enjoy diplomatic status.... ” The court denied the defense request for more time to develop additional evidence and denied the motion for a new trial.

The court thereafter sentenced Petitioner to twenty-five years’ imprisonment, with all but fifteen suspended for the first degree assault conviction. As to the ⁶⁹⁰ conviction for use of a handgun in the commission of a crime of violence, the court sentenced Petitioner to a concurrent five years’ imprisonment. 4 On Petitioner’s direct appeal, the Court of Special Appeals decided the case in a reported opinion, Diallo v. State, 186 Md.App. 22 , 972 A.2d 917 (2009). Before the intermediate appellate court, Petitioner advanced two primary contentions: (1) he enjoyed diplomatic immunity at the time of his arrest and (2) the failure of the United States Department of State to disclose that the elder Diallo enjoyed full diplomatic immunity and privileges when traveling in this country should be imputed to the State prosecutor and, thus, the suppressed evidence was a violation of his due process rights under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). 5 , 6 The intermediate appellate court dismissed Diallo’s appeal of the trial court’s denial of his motion to dismiss because it determined that his brief did not comply with the require ⁶⁹¹ ments of Maryland Rule 8-504(a)(4)-(5), by which a brief must include “[a] clear and concise statement of facts material to the determination of the questions presented ...” and an “[a]rgument in support of the party’s position.” The court rejected Petitioner’s Brady claim, concluding that the State did not suppress any evidence. 186 Md.App. at 73-74, 78 , 972 A.2d at 947, 949 . We granted Diallo’s petition for a writ of certiorari, 410 Md. 559 , 979 A.2d 707 (2009), to consider the following questions: 1.

Whether the trial and intermediate appellate courts erred in holding that Petitioner did not enjoy diplomatic immunity from the criminal jurisdiction of the State of Maryland, based on the immunity of his father, a top-level U.N. diplomat, who the United Nations has certified had immunity in the U.S. at all relevant times? 2. Whether the intermediate appellate court erred when it ruled that Petitioner had waived his right to appellate challenge on appeal the (non-waivable) issue of the court’s jurisdiction because he had allegedly not adhered [to] Md. Rule 8-504(a)? 3. Whether the intermediate appellate court erred when it ruled that knowledge of a manifestly erroneous certification of the U.S. Department of State, called into question by Petitioner in his Motion for New Trial, should not be imputed to the State under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 , and Maryland Rule 4-263, which would have obligated the State to produce all the evidence in both its and the Department of State’s possession, confirming Petitioner’s claim to immunity? Additionally, we granted the State’s conditional cross-petition asking this Court to consider the following question: Did Diallo fail to preserve his claim that the prosecutor failed to comply with discovery obligations? ⁶⁹² ANALYSIS I. Partial Dismissal of Appeal in the Court of Special Appeals The Court of Special Appeals held that Petitioner waived his right to challenge the trial court’s denial of his motion to dismiss because it determined that his brief in that court did not comply with Maryland Rule 8-504(a)(4)-(5), which provides that an appellate brief shall contain “[a] clear and concise statement of facts material to the determination of the questions presented ...” and an “[argument in support of the party’s position.” The intermediate appellate court found Diallo’s brief lacking for at least two reasons.

First, the court held that the brief did not set forth a sufficient argument regarding the denial of the motion to dismiss in that it “[came] quite close in conceding that the trial court could not ‘avoid’ error and, consequently, did not err in denying appellant’s motion to dismiss----” 186 Md.App. at 33-34 , 972 A.2d at 923-24 (emphasis in original). Second, the court found that Petitioner did not marshal any “authority in support of his argument, pertinent to a trial court’s obligations in ruling upon a motion to dismiss. Instead, [Diallo] appears to bootstrap his challenge to the denial of the motion to dismiss to his argument that the prosecution suppressed evidence, in violation of Brady v. Maryland....” Id. at 34 , 972 A.2d at 924 . The court observed also “that [Diallo] has failed to explain or refer to substantial portions of the record relevant to his argument to the trial court and the basis for the trial court’s denial of his motion to dismiss, which [the court determined] are critical to determining the merits of [Diallo’s] challenge to the trial court’s ruling on appeal.” Id.

Accordingly, the court concluded that Diallo waived the issue and dismissed his appeal as to the denial of the motion. Id. Nonetheless, the appellate opinion thereafter engaged in a lengthy discussion as to why Diallo’s substantive argument grounded on diplomatic immunity lacked merit. “[Arguments not presented in a brief or not presented with particularity will not be considered on appeal.” ⁶⁹³ Klauenberg v. State, 355 Md. 528, 552 , 735 A.2d 1061, 1074 (1999) (citing Broadcast Equities, Inc. v. Montgomery County, 123 Md.App. 363, 390 , 718 A.2d 648, 661 (1998)). An appellate court may dismiss an appeal for a party’s failure to comply with the Rule.

Md. Rule 8-504(c). The intermediate appellate court found Diallo’s argument lacking particularity because it made one internal cross-reference to a separate portion of the argument section in which he made his Brady claims. The two separate arguments were based on the same assertion, that he was entitled to diplomatic immunity and that the trial court erred in finding to the contrary. Although we are not entirely unsympathetic to our appellate colleagues’ views as to Petitioner’s written advocacy before them (see infra notes 8 and 10, for example), we conclude that the brief below was sufficient to identify facts and legal authority upon which he based his argument in his brief in that court.

We thus hold that he did not waive his diplomatic immunity argument. We agree completely, however, with the intermediate appellate court’s alternative conclusion that his substantive argument is without merit.

II

Derivative Diplomatic Immunity It is a well-established general principle of law that a diplomatic envoy is immune from the legal process of the Receiving State. 7 The U.S. Supreme Court recognized, from the earliest times of our country as a basis for this principle, that “the person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the Sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world.” Respublica v. De Longchamps, 1 U.S. 111, 116 , 1 Dall. 111 , 1 L.Ed. 59 , 62 (1784). In more modern times, diplomats enjoy immunity under various international treaties, including the UN Convention ⁶⁹⁴ and the Vienna Convention. According to the U.S. State Department, “[t]he purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments.” United States Department of State, Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities 2 (1998 rev. ed.) [hereinafter Diplomatic and Consular Immunity].

See also UN Convention, art. V, § 20 (“Privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves.”). Generally, the spouse and other members of the household and the diplomat’s staff also enjoy the same diplomatic immunities and privileges as the diplomat. Vienna Convention, art. 37(1); UN Convention, art.

V, § 19. The Diplomatic Relations Act of 1978, 22 U.S.C. § 254d (2006) provides: Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations ..., or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Thus, if an individual is entitled to immunity, a court must dismiss the matter because it lacks subject matter jurisdiction over the defendant. See Swarna v. Al-Awadi, 607 F.Supp.2d 509, 515 (S.D.N.Y.2009) (noting that when raised, diplomatic “[i]mmunity must be determined at the outset because it implicates the Court’s subject matter jurisdiction.”).

See also Brzak v. United Nations, 597 F.3d 107, 114 (2d Cir.2010) (upholding the district court’s dismissal for lack of subject matter jurisdiction because defendants were entitled to diplomatic immunity). The individual claiming immunity from prosecution bears the burden of showing that he or she is entitled to immunity. See Burns v. Reed, 500 U.S. 478, 486 , 111 S.Ct. 1934, 1939 , 114 L.Ed.2d 547, 558 (1991) (stating that where a defendant claims prosecutorial immunity from suit, he or she “bears the burden of showing that such immunity is ⁶⁹⁵ justified for the function in question.”); O’Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir.2009) (explaining that the party claiming sovereign immunity under the Foreign Sovereign Immunities Act (the “FSIA”) “bears the initial burden of proof of establishing a prima facie case that it satisfies the FSIA’s definition of a foreign state.... ”); Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 253 (7th Cir.1983) (noting that under the FSIA, defendants bear the burden of establishing their immunity). See also Staley v. Staley, 251 Md. 701, 705 , 248 A.2d 655, 658 (1968) (“The burden of proof in establishing lack of jurisdiction ... is upon the person alleging it.”).

Whether a diplomat is entitled to immunity is typically a mixed question of law and fact. United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir.2004). As such, courts “review such questions ‘under a hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts.’ ” Id. (quoting Gilbane Bldg.

Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895 , 905 (4th Cir.1996)). “Generally an individual must be accredited by the State Department as a diplomatic official in order to be entitled to full diplomatic immunity.” Ved P. Nanda & David K. Pansius, Litigation of International Disputes in U.S. Courts § 4:4 (2d ed. 2010). Typically, in the more common situation of a diplomat to a mission of a traditional foreign State (as opposed to an international organization such as the UN), when a person asserts diplomatic immunity from prosecution or suit, the law enforcement officer should verify the party’s diplomatic status with the State Department. Diplomatic and Consular Immunity, supra, at 16; Nanda & Pansius, supra at § 4:4. In the situation of a representative of a traditional foreign State, courts generally give the State Department’s certification substantial deference in its consideration of diplomatic status.

In re Baiz, 135 U.S. 403, 431-32 , 10 S.Ct. 854, 862 , 34 L.Ed. 222, 231 (1890); Al-Hamdi 356 F.3d at 571 ; Traore v. State, 290 Md. 585, 589 , 431 A.2d 96 , 98 ⁶⁹⁶ (1981); Haley v. State, 200 Md. 72, 82 , 88 A.2d 312, 317 (1952). “A principal reason underlying judicial deference to the executive branch of the federal government in certain matters involving foreign governments is the principle that courts should ‘not so exercise their jurisdiction ... as to embarrass the executive arm of the Government in conducting foreign relations.’ ” Traore, 290 Md. at 591 , 431 A.2d at 99 (alteration in original) (quoting Ex parte Republic of Peru, 318 U.S. 578, 588 , 63 S.Ct. 793, 799 , 87 L.Ed. 1014, 1020 (1943)). We, however, do not review the State Department’s conclusions of law with regard to the interpretation of a statute on a deferential standard. Id. at 592 , 431 A.2d at 99-100 . Ascertaining the diplomatic status, vel non, of an individual claiming diplomatic immunity based on his or her involvement with the UN, rather than a traditional foreign State, requires a different and more complex analysis.

At least two scholars point out, albeit discussing the immunity of the UN as an entity rather than that of a UN official, that “[tjheorists who attempt to explain the international immunities of the United Nations face what has been called a ‘bewildering array of instruments,’ an ‘inconsistency of practice,’ a ‘multiplicity of applicable instruments,’ and a ‘bizarre drafting of provisions.’ ” Linda S. Frey & Marsha L. Frey, The History of Diplomatic Immunity 559 (1999). In the case of a UN official, the United Nations is essentially the receiving State and, as such, the “United States has no say or veto power with respect to such representative of any member state.” United States v. Fitzpatrick, 214 F.Supp. 425, 433 (S.D.N.Y.1963). Thus, when a law enforcement officer encounters a suspect who claims that he or she is a UN official or claims immunity through such a person, the officer should verify the diplomatic status of the UN official with the United States Mission to the UN. Diplomatic and Consular Immunity, supra, at 16.

In the context of the present case, the Coffey certification would be inconclusive with regard to the elder Diallo’s diplomatic status in 2006 and we shall not consider the certification ⁶⁹⁷ further in our analysis. Moreover, the State appears to concede that the Coffey certification is incomplete and possibly incorrect in its conclusion and that, by virtue of the United States’ adoption of the Vienna Convention, any protection accorded to UN officials was available to the elder Diallo when present in the United States (before he resigned his UN position). Petitioner alleges, and the State concedes, that his father was a senior UN official entitled to diplomatic immunity under certain circumstances. He contends further that, as a member of his father’s household, he enjoyed derivative diplomatic immunity under the Vienna Convention and the UN Convention, to the extent his father enjoyed it at the critical time(s) significant to our analysis.

He claims that he is immune from prosecution pursuant to the UN Convention, the Vienna Convention, the International Organizations Immunities Act, 22 U.S.C. §§ 288-2881 , 8 and the Diplomatic Relations Act, 22 U.S.C. § 254a. The State retorts that he failed to establish before the trial court that his father enjoyed diplomatic immunity on the date(s) in question, and, thus, Diallo enjoyed nothing derivatively. 9 As a then UN Assistant Secretary-General, the principal source of the elder Diallo’s immunity was the UN Convention. The UN Convention grants to the Secretary-General and all Assistant Seeretaries-General (and their spouses and minor children) “the privileges and immunities, exemptions and facil ⁶⁹⁸ ities accorded to diplomatic envoys, in accordance with international law.” UN Convention, art. V, § 19.

The scope of that immunity under “international law” is the immunity described in the Vienna Convention. See Brzak, 597 F.3d at 113 ; Ahmed v. Hoque, 2002 WL 1858776 , at ⁵, 2002 U.S. Dist. LEXIS 14852 , at ¹³-14 (S.D.N.Y. 14 Aug. 2002) (“The scope of immunity extended to diplomatic envoys, and accordingly the scope of immunity to be extended to United Nations representatives, is that set out in the Vienna Convention ____”). Here, Petitioner argued to the trial court in his motion to dismiss, other papers filed in the Circuit Court, and at the 13 November 2007 hearing that, pursuant to Article IV, § 11 of the UN Convention, he was entitled to full diplomatic immunity and privileges. 10 That section provides, in pertinent part: ⁶⁹⁹ Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities: (a) immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind.

UN Convention, art. IV, § 11. That section limits the official’s immunity to “functional immunity,” i.e., immunity for acts exercised in the performance of his or her official duties. Under the Vienna Convention, “[a] diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” Art. 31(1).

Article 39(1) states that “[e]very person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post....” When that person’s diplomatic functions come to an end in the Receiving State, “such privileges and immunities shall normally cease at the moment when he leaves the country---- However, with respect to acts performed by such person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.” Vienna Convention, art. 39(2). Article 37(1) of the Vienna Convention provides that “[t]he members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29-36.” Accordingly, if the elder Diallo was present in the United States at the time the offense occurred or perhaps when Petitioner was arrested, Diallo may have been entitled to absolute immunity. If the elder Diallo was absent, however, he would be entitled at most only to functional immunity. ⁷⁰⁰ Vienna Convention, art. 39(2); see also Brzak, 597 F.3d at 113 (former UN officials no longer in the country enjoy only functional immunity); Swarna, 607 F.Supp.2d at 515-16 (former UN official entitled only to functional immunity). In Swarna v. Al-Awadi, 607 F.Supp.2d at 511-12 , a former domestic employee brought suit in the U.S. against her former employer, the employer’s wife, and the State of Kuwait.

The former employer was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations. Id. At the time the former employee brought suit, her former employer lived in Paris, France. Id. at 512 .

The individual defendants claimed diplomatic immunity under, inter alia, the Vienna Convention and the Diplomatic Relations Act. Id. The court determined that the former diplomat was not entitled to “residual diplomatic immunity” because his employment of a domestic servant was a private act and bore no official relation to the functions of a diplomatic mission. Id. at 520 .

With respect to the former diplomat’s wife, the court held that, although Article 37 of the Vienna Convention (providing for diplomatic immunity of diplomat’s family members) does not provide expressly for residual diplomatic immunity to family members once they have left the country, it “need not decide whether, if Mr. Al-Awadi were entitled to residual diplomatic immunity under Art. 39, such immunity would also extend to [his wife]. [She] has no greater entitlement to immunity than does Mr. Al-Awadi.” Id. at 522 . Because the court held that the husband was not entitled to diplomatic immunity, the court determined that “it follows that [the plaintiffs claims] are also not barred with respect to [the wife].” Id. Under the plain language of the Diplomatic Relations Act, § 254d, if Petitioner was entitled to diplomatic immunity under the UN Convention and the Vienna Convention at the time the offense occurred or when he was arrested, the trial court should have dismissed the charges against him. The parties do not dispute that the elder Diallo must have been present in the United States on the date in question in order for Petitioner to enjoy derivative immunity from criminal ⁷⁰¹ prosecution.

The State argues, however, that Petitioner did not present sufficient evidence to compel the trial court to conclude that the elder Diallo was present in the United States on either potentially relevant date. Petitioner contends that he presented sufficient evidence in his pre- and post-trial motions to show that the elder Diallo had diplomatic status at the time of the subject offenses, namely a letter from the UN Secretary-General, Kofi Annan, appointing the elder Diallo, a June 2006 list of the UN Assistant Secretary-Generals, and the Meek attestation. The only “new” evidence presented to the trial court at the hearing on Petitioner’s motion for a new trial was the letter from Congressman Payne. Diallo, however, merely alleged in his brief that his father was in New York at the critical time(s), meeting with former United States UN Ambassador, Andrew Young.

Yet, Diallo did not offer to the trial court any documentary or testimonial proffer of evidence to support the latter assertion. 11 The sum of the evidence actually generated before the Circuit Court showed only that his father was an Assistant Secretary-General at the time of the crimes and Diallo’s arrest, not that the elder Diallo was in the United States performing any official UN functions at those times. 12 We hold, therefore, that the trial court did not err in denying the motion to dismiss on the ground that Petitioner ⁷⁰² had not proven he enjoyed immunity under the Vienna Convention because he did not present sufficient evidence that he enjoyed immunity under the UN Convention.

III

Petitioner’s Brady Claim A. Preservation Petitioner contends that the U.S. State Department violated its obligation to exercise due diligence and produce exculpatory materials related to his father’s diplomatic status. He perceives this alleged failure to be a violation of his due process rights under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its progeny. The State counters initially that the Brady issue is not properly before this Court because Petitioner neglected to preserve his Brady argument by failing to raise it in the trial court and, thus, there is no trial court ruling for us to review. “Ordinarily, [an] appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court____” Md. Rule 8-131. We have stated repeatedly that the primary purpose of Maryland Rule 8-131 is “ ‘to ensure fairness for all parties in a case and to promote the orderly administration of the law.’ ” Conyers v. State, 367 Md. 571, 594 , 790 A.2d 15, 29 (2002) (quoting State v. Bell, 334 Md. 178, 189 , 638 A.2d 107, 113 (1994)).

Petitioner never argued explicitly, before conviction by the trial court, that the State Department’s failure to recognize that the elder Diallo was a diplomat was a violation of his due process rights under Brady . He did assert, however, in a motion for a new trial, that he had “recently discovered evidence” which required the court to exercise its revisory power under Maryland Rule 4-331 13 and set aside the verdict. ⁷⁰³ He stated that he would “present evidence from the United States Department of State that will directly controvert” the Coffey certification. 14 The Court of Special Appeals held that the motion for a new trial, asserting that Diallo had recently discovered evidence, preserved sufficiently a Brady argument. 186 Md.App. at 71 , 972 A.2d at 945 . We shall not disturb that conclusion. B. The Alleged Brady Violation The Court of Special Appeals held that the State did not violate Petitioner’s right to due process of law under Brady.

Diallo, 186 Md.App. at 72 , 972 A.2d at 946 . The intermediate appellate court concluded that there was no suppression and, furthermore, that any latent knowledge that the State Department possessed regarding Diallo’s diplomatic status could not be imputed to the Maryland prosecutor. Id. at 78 , 972 A.2d at 949 . We