McCree v. State

441 Md. 4

105 A.3d 456

113 U.S.P.Q.2d 1844

Bernard Delaney McCREE, Jr.

v.STATE of Maryland.

No. 20, Sept. Term, 2014.

Court of Appeals of Maryland.

Dec. 18, 2014.

Michael T. Torres, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

Christopher Mason, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.

Opinion

WATTS, J.

We decide whether Maryland's trademark counterfeiting statute, Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) (“CR”) § 8–611 —which prohibits, among other things, the willful display of goods that have “retail value” and bear a counterfeit mark—is facially overbroad or facially void-for-vagueness. Analyzing CR § 8–611's plain language, we hold that CR § 8–611 is neither facially overbroad nor facially void-for-vagueness.

BACKGROUND

The State, Respondent, charged Bernard Delaney McCree, Jr. (“McCree”), Petitioner, with numerous crimes, including violating CR § 8–611. In the Circuit Court for Queen Anne's County (“the circuit court”), McCree moved to dismiss the charges for violating CR § 8–611 on the ground that CR § 8–611 is unconstitutional, arguing that the statute is facially overbroad and facially void-for-vagueness. The circuit court denied the motion to dismiss.

At trial, a trooper of the Maryland State Police testified that, during a traffic stop of a vehicle that McCree had been driving, 206 DVDs were found in the vehicle. Dennis Supik, an investigator with the Content Protection Office of the Motion Picture Association of America, testified as an expert in the field of the identification of counterfeit DVDs that all 206 DVDs contained “numerous counterfeit marks” and thus were “counterfeit reproductions” of movies on DVD. On his own behalf, McCree testified that he was a licensed vendor whom the State had authorized to sell the DVDs; McCree denied that he had manufactured the DVDs or that he knew whether the DVDs were counterfeit.

A jury convicted McCree of violating CR § 8–611. The circuit court sentenced McCree to ten years' imprisonment, with all but one year suspended, for the violation of CR § 8–611, consecutive to other sentences, followed by three years of supervised probation. McCree appealed, and the Court of Special Appeals affirmed. See McCree v. State, 214 Md.App. 238, 76 A.3d 400 (2013). McCree filed a petition for a writ of certiorari, which this Court granted. See McCree v. State, 436 Md. 501, 83 A.3d 779 (2014).

DISCUSSION

I.

McCree contends that CR § 8–611 is facially overbroad because it criminalizes conduct that the Free Speech Clause of the First Amendment to the United States Constitution protects. Specifically, McCree argues that CR § 8–611 broadly applies to the display or distribution of goods (such as signs or pamphlets) that include trademarked words or labels, terms, devices, designs, or words that are not registered with any government entity. McCree asserts that CR § 8–611 is substantively identical to a previous version of Pennsylvania's trademark counterfeiting statute, which the Supreme Court of Pennsylvania struck down as overbroad. The State responds that CR § 8–611 is not facially overbroad because it applies only to goods that a defendant intends to sell, and thus is distinguishable from the previous version of Pennsylvania's trademark counterfeiting statute. In reply, McCree contends that CR § 8–611 applies to goods that a defendant displays or distributes, even if the defendant does not intend to sell the goods; and, alternatively, even if CR § 8–611 applies only to goods that a defendant intends to sell, the Free Speech Clause protects such commercial speech.

An appellate court reviews without deference a trial court's conclusion as to whether a statute is unconstitutional. See generally Corbin v. State, 428 Md. 488, 498, 52 A.3d 946, 951 (2012) (“[W]e review the ultimate question of constitutionality de novo[.]” (Citation omitted)). In interpreting a statute, a court first considers the statute's language, which the court applies where the statute's language “is unambiguous and clearly consistent with the statute's apparent purpose[.]” State v. Weems, 429 Md. 329, 337, 55 A.3d 921, 926 (2012) (citation omitted).

An overbroad statute criminalizes conduct that the Free Speech Clause of the First Amendment to the United States Constitution¹ protects. See Grayned v. City of Rockford, 408 U.S. 104, 114–15, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (“A clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.... The crucial question ... is whether the ordinance sweeps within its prohibitions what may not be punished under the First ... Amendment [ ].” (Footnote omitted)).

Even if a statute is not overbroad as applied to a particular defendant's actions, the defendant may contend that the statute is facially overbroad “because of a judicial prediction or assumption that the statute's very existence may” chill third parties' speech. Hill v. Colorado, 530 U.S. 703, 731–32, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (citation omitted). Such a facial challenge succeeds if and only if “the statute is substantially overbroad”—i.e., there is “a realistic danger that the statute [ ] will significantly compromise” third parties' speech. N.Y. State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (citation and internal quotation marks omitted); see also United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ( “[A] statute's overbreadth [must] be substantial ... relative to the statute's plainly legitimate sweep.” (Citations and emphasis omitted)).

CR § 8–611 states, in relevant part:

(a) Definitions. —(1) In this section the following words have the meanings indicated.

(2) “Counterfeit mark” means:

(i) an unauthorized copy of intellectual property; or

(ii) intellectual property affixed to goods knowingly sold, offered for sale, manufactured, or distributed, to identify services offered or rendered, without the authority of the owner of the intellectual property.

(3) “Intellectual property” means a trademark, service mark, trade name, label, term, device, design, or word adopted or used by a person to identify the goods or services of the person.

(4) “Retail value” means:

(i) a trademark counterfeiter's selling price for the goods or services that bear or are identified by the counterfeit mark; or(ii) a trademark counterfeiter's selling price of the finished product, if the goods that bear a counterfeit mark are components of the finished product.

(5) “Trademark counterfeiter” means a person who commits the crime of trademark counterfeiting prohibited by this section.

(b) Prohibited. —A person may not willfully manufacture, produce, display, advertise, distribute, offer for sale, sell, or possess with the intent to sell or distribute goods or services that the person knows are bearing or are identified by a counterfeit mark.

(c) Penalty —Value at least $1,000. —If the aggregate retail value of the goods or services is $1,000 or more, a person who violates this section is guilty of the felony of trademark counterfeiting[.]

(d) Penalty —Value less than $1,000. —If the aggregate retail value of the goods or services is less than $1,000, a person who violates this section is guilty of the misdemeanor of trademark counterfeiting[.]

* * *

(g) Evidence of trademark or trade name. —State or federal registration of intellectual property is prima facie evidence that the intellectual property is a trademark or trade name.

(Emphasis added).

Reviewing CR § 8–611 and the applicable authorities, we conclude that CR § 8–611 is not facially overbroad. Read in its entirety, CR § 8–611 criminalizes the “display [or] distribut[ion of] goods ... that ... bear[ ] or are identified by a counterfeit mark[,]” CR § 8–611(b), only if the goods have “retail value[.]” CR § 8–611(c), (d). Specifically, by their plain language, the penalty provisions delineate that, “[i]f the aggregate retail value of the goods ... is $1,000 or more, [the defendant] is guilty of [a] felony[,]” CR § 8–611(c), and, “[i]f the aggregate retail value of the goods ... is less than $1,000, [the defendant] is guilty of [a] misdemeanor[.]” CR § 8–611 (d). “Retail value” means a “selling price [.]” CR § 8–611(a)(4)(i), (ii). In other words, CR § 8–611 does not criminalize the display or distribution of goods that have no retail value and are not meant to be sold. Accordingly, CR § 8–611 does not criminalize conduct that the Free Speech Clause indisputably protects—for example, the mere display of signs or distribution of pamphlets.

Our conclusion is supported by the doctrine of noscitur a sociis (“it is known from its associates”), under which “the meaning of a word is ... known from the accompanying words so that ... general and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are restricted to a sense analogous to less general[.]” Emmert v. Hearn, 309 Md. 19, 25, 522 A.2d 377, 380–81 (1987) (citation omitted). CR § 8–611 criminalizes the “manufacture, produc[tion], display, advertise[ment], distribut[ion], offer[ing] for sale, [sale], or possess[ion] with the intent to sell or distribute goods or services that [a defendant] knows are bearing or are identified by a counterfeit mark.” CR § 8–611(b). Six of the eight types of conduct that CR § 8–611 criminalizes—manufacture, production, advertisement, offering for sale, sale, and possession with the intent to sell or distribute—directly relate to commercial acts or purposes. Viewed in context with these six other types of conduct, “display” and “distribute” obviously also relate to commercial acts or purposes.

Indeed, in another statute, titled “Infringement,” that, like CR § 8–611, protects trademarks (...