Dickson v. United States

Joel Adam Dickson v. United States of America, Misc. No. 7, September Term, 2021. Opinion by Biran, J. CRIMINAL LAW – ROBBERY – THREATS AGAINST PROPERTY AND CHARACTER – Answering a certified question from the United States Court of Appeals for the Fourth Circuit, the Court of Appeals held that neither a threat to harm a person’s property nor a threat to accuse a person of having committed sodomy may form the basis for a robbery conviction under Maryland law. U.S. Court of Appeals for the Fourth Circuit Appeal No. 19-4226 Argued: December 2, 2021 IN THE COURT OF APPEALS OF MARYLAND Misc.

No. 7 September Term, 2021 JOEL ADAM DICKSON v. UNITED STATES OF AMERICA *Getty, C.J. Watts Hotten Booth Biran Gould Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ. Opinion by Biran, J. Filed: April 25, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. of this case while an active member of this 2022-04-25 11:54-04:00 Court. After being recalled pursuant to Md. Const., Art. IV, § 3A, he also participated in the decision and adoption of this opinion.

Suzanne C. Johnson, Clerk By statute, this Court is authorized to “answer a question of law certified to it by a court of the United States or by an appellate court of another state or of a tribe, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State.” Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 12-603 (2020 Repl. Vol.).

The United States Court of Appeals for the Fourth Circuit has certified the following question to this Court: Under Maryland law, can an individual be convicted of robbery by means of threatening force against property or threatening to accuse the victim of having committed sodomy? As we explain below, the answer to that question is “No.” I Background Under CJP § 12-605(a), “[t]he court certifying a question of law” to this Court “shall issue a certification order.” The certification order must contain “[t]he facts relevant to the question, showing fully the nature of the controversy out of which the question arose[.]” Id. § 12-606(a)(2). This Court accepts the facts provided by the certifying court. See, e.g., Price v. Murdy, 462 Md. 145, 147 (2018).

Thus, we adopt the following facts set forth in the certification order of the Fourth Circuit: Joel Adam Dickson pled guilty, without a plea agreement, to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922 (g). In the presentence report (“PSR”), the probation officer assigned Dickson a base offense level of 20, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2018), determining that Dickson possessed the firearm after sustaining a felony conviction for a crime of violence, namely his 2007 Maryland robbery conviction. The PSR applied a three-level reduction for acceptance of responsibility, USSG § 3E1.1, for a total offense level of 17. With a total offense level of 17 and placement in criminal history category V, Dickson’s advisory Sentencing Guidelines range was 46 to 57 months’ imprisonment.

See USSG ch. 5, pt. A (sentencing table). Dickson objected to the application of USSG § 2K2.1(a)(4)(A), disputing that his robbery conviction qualified as a crime of violence, and contending instead that his base offense level should be 14 pursuant to USSG § 2K2.1(a)(6). The district court overruled Dickson’s objection and held that Maryland robbery qualified as a crime of violence for purposes of USSG § 2K2.1.

There were no other objections to the PSR, and the district court adopted the Guidelines calculations therein. The district court sentenced Dickson to 57 months’ imprisonment, a term at the top of his Guidelines range. Dickson timely appealed. The Fourth Circuit then explained why it was certifying its question concerning Maryland robbery to this Court: Section 2K2.1(a)(4)(A) establishes a base offense level of 20 for an offense involving unlawful possession of firearms or ammunition if the defendant committed the offense after sustaining a felony conviction for a “crime of violence.” The Guidelines define a “crime of violence,” in relevant part, as any crime punishable by more than a year in prison that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another [“the force clause”], or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, [or] extortion [“the enumerated offenses clause”].

USSG § 4B1.2(a); see USSG § 2K2.1 cmt. n.1 (referencing definition of “crime of violence” in USSG § 4B1.2). Citing decades-old case law from the Court of Special Appeals of Maryland, Dickson argues on appeal that Maryland robbery does not qualify as a crime of violence for purposes of USSG § 2K2.1(a)(4)(A) under either the force clause or the enumerated offenses clause. In Giles v. State, the Court of Special Appeals of Maryland stated in dicta that achieving a taking through instilling a fear of injury to property, such as “a threat to burn down a house,” is sufficient to qualify the taking as robbery. 261 A.2d 806, 807-08 (Md. Ct. Spec. App. 1970).

The Court of Special Appeals of Maryland further stated 2 that instilling a fear of injury to character or reputation generally is not sufficient to qualify a taking as robbery, but that: If a man threatens to accuse another of an unnatural crime, sodomy, and thereby obtains property from him, the law regards it as robbery because this offense is so loathsome that the fear of loss of character from such a charge, however unfounded it may be, is sufficient to reasonably induce a man to give up his property. Id. at 808 n.1 (internal quotation marks omitted). The Court of Special Appeals of Maryland has since twice cited Giles in dicta for the proposition that robbery includes a taking accomplished by means of instilling in the victim fear of injury to property. See Douglas v. State, 267 A.2d 291, 295 (Md. Ct. Spec.

App. 1970); Coles v. State, 2002 WL 1579567 , at * 8 (Md. Ct. Spec. App. Apr. 19, 2002) (unpublished). If taking by means of instilling fear through threatening force against property or threatening to accuse the victim of sodomy qualifies as Maryland robbery, then Dickson is correct that Maryland robbery does not qualify as a crime of violence under the force clause, because such an offense does not require “the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(1) (emphasis added). To decide whether Maryland robbery aligns with robbery under the enumerated offenses clause, we first consider the generic definition of robbery and then determine whether Maryland robbery is a categoric match to that offense.

United States v. Fluker, 891 F.3d 541, 547 (4th Cir. 2018). We define generic robbery as “the misappropriation of property under circumstances involving immediate danger to the person.” United States v. Green, 996 F.3d 176, 181 (4th Cir. 2021) (internal quotation marks omitted). If a taking by means of instilling fear by threatening force against property or threatening to accuse a victim of sodomy qualifies as Maryland robbery, then this state offense does not qualify as a crime of violence under USSG § 4B1.2(a)(2). We have found no Court of Appeals of Maryland decisions addressing whether Maryland robbery may be accomplished through threatening force against property or by threatening to accuse the victim of having committed sodomy.

We therefore respectfully request that the certified question be answered. 3 II Standard of Review When answering a certified question of law, this Court determines only questions of Maryland law, not questions of fact, and we confine our legal analysis and final determinations of Maryland law to the questions certified. United Bank v. Buckingham, 472 Md. 407, 421 (2021); Fangman v. Genuine Title, LLC, 447 Md. 681, 690-91 (2016). Indeed, we “may go no further than the question certified.” Price, 462 Md. at 147 (quoting AGV Sports Grp., Inc. v. Protus IP Solutions, Inc., 417 Md. 386 , 389 n.1 (2010)). As we are deciding a question of law, and are not reviewing the decision of a lower court, our analysis necessarily is de novo.

III Discussion Article 5 of Maryland’s Declaration of Rights provides that “the Inhabitants of Maryland are entitled to the Common Law of England . . . as [it] existed on the Fourth day of July, seventeen hundred and seventy-six . . . subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.” Md. Const. Declaration of Rights Art. 5(a)(1); see Gladden v. State, 273 Md. 383, 389 (1974) (“In 1776 the framers of the Constitution of Maryland adopted the common law [of England] as part of the law of this State.”). Dickson argues that, as of July 4, 1776, it was accepted in English common law that a person could be guilty of robbery if he took a victim’s property not just by using or threatening to use force against the person of the victim, but also by threatening force 4 against the victim’s property or threatening to accuse the victim of sodomy. Thus, according to Dickson, these two alternative modalities of robbery became part of Maryland’s common law through the incorporation of English common law as it existed on July 4, 1776.

Dickson further contends that neither the General Assembly nor this Court has ever disclaimed these two modalities of robbery, and that they therefore remain part of Maryland law today. The Government responds that there was no consensus in English common law as of July 4, 1776, that a robbery could be committed by threatening force against property or by threatening to accuse another of sodomy. But even if those modalities were part of English common law – and therefore became part of Maryland common law in 1776 – the Government argues that this Court in many opinions prior to 2000 defined robbery without mentioning force against property or accusations of sodomy, but rather only referencing the use or threatened use of force against the person. The Government observes that in 2000, the General Assembly for the first time codified a definition of robbery, providing that robbery would retain its “judicially determined meaning, except that a robbery conviction requires proof of intent to deprive another of property” and that robbery “includes obtaining the service of another by force or threat of force.” See 2000 Md. Laws, Chap. 288.1 Given this Court’s pre-2000 definitions of Maryland robbery, the Government contends that the General Assembly’s codification of the “judicially determined meaning” 1 See Borchardt v. State, 367 Md. 91 , 145-46 n.9 (2001) (describing the 2000 codification of the elements of Maryland robbery). 5 of robbery means that the use or threatened use of force against the person is an essential element of every robbery under Maryland law.

We determine that Maryland robbery has never included alternative modalities based on threats to property or threats to accuse another of sodomy. But even if one or both of these modalities became part of Maryland common law in 1776, this Court subsequently defined the elements of robbery without referencing threats to property or threats to accuse another of sodomy. It was this judicially determined meaning of robbery – which only included the use or the threatened use of force against the person – that the General Assembly codified in 2000. A. Robbery Under English Common Law as of July 4, 1776 This Court looks to English common law as it existed on July 4, 1776, when analyzing the elements of common law criminal offenses in Maryland.

See, e.g., Gladden, 273 Md. at 389 . This Court has done so specifically in the context of common law robbery on multiple occasions. See, e.g., West v. State, 312 Md. 197, 203-04 (1988); Spencer v. State, 422 Md. 422, 429 (2011). Thus, we begin our analysis in this case by examining whether robbery under English common law, as of July 4, 1776, could be committed by way of a threat against a victim’s property or a threat to accuse the victim of having committed sodomy.

Under English common law, robbery was defined as a “felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear.” 2 WILLIAM OLDNALL RUSSELL, A TREATISE ON CRIMES AND INDICTABLE MISDEMEANORS 61 (2d ed. 1828) (emphasis added). We are concerned 6 here with the meaning of “putting [the victim] in fear” as that phrase was used in describing robbery under English common law prior to July 4, 1776. It is undisputed that putting someone in fear of physical harm could form the basis for a robbery conviction under English common law. What is disputed by the parties is whether, under English common law as it existed on July 4, 1776, a person could commit robbery by putting the victim in fear of something other than physical harm – specifically, fear that their property would be harmed or fear that they would be accused of sodomy.

As will be seen, it was not settled under English common law on July 4, 1776, that a person could commit robbery by threatening the victim’s property or by threatening to accuse the victim of sodomy. 1. Threats Against Property Dickson cites one pre-July 4, 17762 case, Rex v. Simons, in which, he claims, the twelve common law judges of England, known as the “Twelve Judges,”3 held that robbery 2 The post-July 4, 1776 English robbery cases that Dickson cites provide little, if any, insight concerning the elements of Maryland robbery, as Article 5 of the Declaration of Rights incorporates the “Common Law of England . . . as [it] existed on the Fourth day of July, seventeen hundred and seventy-six.” Md. Const. Declaration of Rights Art. 5(a)(1). Any changes to English common law that occurred after July 4, 1776 were not automatically incorporated into Maryland law and thus have no bearing on our analysis in and of themselves.

We only consider the post-July 4, 1776 cases to the extent they illuminate the status of English common law robbery as it existed on July 4, 1776. 3 Prior to the mid-nineteenth century, when a question of law or procedure arose in the course of a criminal jury trial in England, the question could be reserved for consideration by the Twelve Judges. See James Oldham, Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries, 27 Law & Hist. Rev. 181 (2011). If the Twelve Judges thought a defendant’s conviction was improper, they would recommend to the Crown that the prisoner be pardoned.

Id. at 182- 83. In 1848, Parliament created the Court for Crown Cases Reserved, which formalized the Twelve Judges’ “off-the-record procedure that had been followed for centuries.” Id. at 181 . 7 could be committed through a threat against the victim’s property. Dickson has not directed us to a published opinion in Simons, which apparently was tried in 1773; rather, he cites the discussion of Simons in a treatise published more than 30 years later, 2 EDWARD HYDE EAST, A TREATISE OF THE PLEAS OF THE CROWN (1806) (“East”). East describes Simons as follows: One Simons … came with above seventy of his companions to the house of one Thomas Rowe, and said, they would have from him the same as they had had from his neighbours, which was one guinea, else they would tear down his mow of corn and level his house.

He gave them a crown to appease them; [Simons] swore he would have 5s. more, which Rowe, being terrified, gave him. They then opened a cask of cider by force, and drank part of it, and eat his bread and cheese, and [Simons] carried away a piece of meat. He was indicted for robbing Rowe of 10s. in his dwelling-house by assault, and putting him in fear. But there was also another count, for putting [Rowe] in fear, and taking from him in his dwelling-house a quantity of cider, pork, and bread: and it was holden robbery in the dwelling-house.

East at 731. To begin, we observe that East’s discussion of Simons, unlike East’s account of other cases in his treatise, does not provide any details concerning the reasoning of the Twelve Judges. The account of one trial, bereft of legal analysis, 33 years after the fact, is a thin reed upon which to claim that it was a settled tenet of English common law by July 4, 1776, that robbery could be committed by threatening a person’s property. Moreover, it is not clear that Simons involved a threat to property without a concomitant threat to Rowe’s person.

East’s account explains that a mob of more than 70 people appeared at Rowe’s house. Id. Simons demanded money from Rowe or else the mob would tear down his mow of corn and “level his house.” Id. Rowe then gave Simons money because he “was terrified.” Id.

After they had the money, Simons and others opened 8 the cask of cider by force and drank part of it, ate some bread and cheese, and then left with some meat. Id. Simons’s indictment contained two counts. The first count was for robbing Rowe of money “by assault, and putting [Rowe] in fear.” Id.

The second count was “for putting [Rowe] in fear” and taking the cider, pork, and bread. Because Rowe handed over the money after Simons’s threatening statements but before Simons and his cohorts took the victuals, the threat to tear down the corn and level Rowe’s house if Rowe did not hand over money necessarily was the basis for the charge of robbery “by assault, and putting [Rowe] in fear.” (Emphasis added.) Thus, it would appear that a guilty verdict on the first count associated with those threats was based, at least in part, on an underlying assault, i.e., putting Rowe in fear of bodily harm.4 In any event, in discussing a case from 1792, Rex v. Astley, East makes clear that there was not a consensus in English common law prior to 1792 that robbery could be committed by threatening the victim’s property. In Astley, the defendants, accompanied by another man who claimed to be the “head of the mob … 2,000 strong,” accosted the victim, Grundy, outside Grundy’s house near Birmingham. East at 729-30.

The head of the mob told Grundy that he needed money to provide something for the mob to drink. If Grundy did not provide “something handsome for his men to drink,” Grundy’s “house should come 4 The second count of conviction was based on the taking of the food and drink, after Rowe had complied with Simons’s demand for money, and following the forcible opening of the cask of cider. A reasonable interpretation of East’s account is that the jury found that the second taking was based on Simons having put Rowe in fear by forcibly opening the cask of cider. 9 down.” Grundy said that he might have “9 or 10 guineas,” which the head of the mob asked to see. As Grundy was “taking his purse out of his pocket, James Astley told [Grundy] that he might depend upon it that the other man was the head of the mob” and that the other man “was the first man who had entered every house that had been destroyed” during recent riots in Birmingham.

Id. at 730 . East recounted that “Mr. Grundy was so struck with that expression that he immediately took the money out of his purse (9 guineas and a half,) which he gave to the [head of the mob]…” Id. Grundy claimed later that he “was greatly alarmed, but not for his person: that when he delivered his money his apprehension was, that if he had refused to do so, the [defendants] would have gone to Birmingham, and have returned with other persons, and pulled down his house and plundered it before he could remove his wife, who was in the house in great agitation.” Id. East continued: It was objected on [the defendants’ behalf], that there was no evidence of robbery, inasmuch as [Grundy] did not deliver his money from any immediate fear of danger to himself or his property, but from an apprehension of future injury to his house by pulling it down.

And the counsel for the Crown admitting it to be a new case, Grose J. proposed to have a special verdict found; but on account of the [defendants’] situation, it was agreed that the truth of the evidence should be left to the jury, and if they should find the [defendants] guilty, the judgment should be respited, and the facts submitted to the [Twelve] Judges for their opinion, whether the evidence amounted to robbery. Id. (Emphasis added.) If the prosecution’s theory of robbery based on a threat to pull a victim’s house down at a later time was considered a “new case” in 1792, then it necessarily follows that 10 it was not a settled point of English common law on July 4, 1776, that a threat to property could form the basis for a robbery conviction. 2. Threats to Accuse the Victim of Sodomy Dickson fares no better in arguing that, as of July 4, 1776, it was settled that robbery could be committed in England by threatening to accuse another of sodomy.

As East noted in his 1806 treatise, English common law as of the time of East’s writing was still developing with respect to the “nature” of the “fear” that could form the basis for a robbery conviction: It remains further to be considered what nature this fear may be. This is an inquiry the more difficult, because it is no where defined in any of the acknowledged treatises upon this subject. Lord Hale proposes to consider what shall be said a putting in fear, but he leaves this part of the question untouched. Lord Coke and Hawkins do the same.

Mr. Justice Foster seems to lay the greatest stress upon the necessity of the property’s being taken against the will of the party, and he lays the circumstance of fear out of the question; or that at any rate when the fact is attended with circumstances of violence or terror, the law in odium spoliatoris will presume fear if it be necessary, where there appears to be so just a ground for it. Mr. Justice Blackstone leans to the same opinion. But neither of them afford any precise idea of the nature of the fear or apprehension supposed to exist. East at 713 (emphasis in original).

East found it prudent not to attempt “to draw [an] exact line” on this point, but added, thus much I may venture to state, that on the one hand the fear is not confined to an apprehension of bodily injury; and on the other hand it must be of such a nature as in reason and common experience is likely to induce a person to part with his property against his will, and to put him as it were under a temporary suspension of the power of exercising it through the influence of the terror impressed; in which case fear supplies, as well in sound reason as in legal construction, the place of force, or an actual taking by violence, or assault upon the person. Id. 11 East then went on to recount the February 1776 case of Rex v. Jones. See id. at 714-15 ; see also Proceedings of the Old Bailey, Feb. 21, 1776, available at https://perma.cc/CKU2-KGZS (“Jones Old Bailey Report”); 1 Leach 139, 168 Eng. Rep. 171.

In Jones, the victim (Newman) testified as follows. He came into contact with Jones because the two men were sitting near each other at a playhouse. After the show ended, Jones followed Newman out of the playhouse and into a nearby pub. After drinking beer together, Jones asked Newman what Newman “meant by the liberties he had taken with [Jones’s] person at the play-house.” East at 714.

Newman replied that he knew of none. Jones responded, “D – n you, Sir, but you did,” and claimed that others who had been present would “take their oath of it.” Jones Old Bailey Report. Alarmed by Jones’s words, Newman replied that he did not understand what Jones meant, and left the pub soon afterwards. Jones followed Newman out of the pub, told him to “stop,” and threatened to “raise a mob about” Newman if Newman “offer[ed] to run.” Id.

Jones then immediately came up to Newman, “seized [Newman’s] arm,” and said that “this affront is not to be put up with, such an insult is not to be borne, you have offered me an indignity, and nothing can make me satisfaction.” Id. In “fright,” Newman asked Jones what he wanted. Jones replied that Newman “must make [him] a present” of money. With Jones continuously holding Newman by the arm, Newman took “three guineas and some silver” out of his pocket and gave it to Jones.

Id. After Jones demanded more money, Newman attempted to leave, but Jones “kept hold of [Newman’s] arm and made [him] stand still, which put [Newman] in much fear.” 12 Id. Newman testified at Jones’s trial that he “was fearful [that Jones] had a design of mischief upon [Newman’s] person.” Id. Counsel for the Crown asked Newman: “The threat, as I understand, was that he would raise a mob on