BERNARD DELANEY McCREE, JR.
STATE OF MARYLAND
Argued November 6, 2014
Certiorari to the Court of Special Appeals (Circuit Court for Queen Anne's County) Case No. 17-K-10-007592. Thomas G. Ross, JUDGE.
ARGUED BY Michael T. Torres, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Baltimore, MD) on brief FOR PETITIIONER.
ARGUED BY Christopher Mason, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief FOR RESPONDENT.
ARGUED BEFORE Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ. Opinion by Watts, J.
[441 Md. 7] 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.
[441 Md. 8]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).
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 [441 Md. 9] 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 Constitution protects. See Grayned v. City of Rockford, 408 U.S. 104, 114-15, 92 S.Ct. 2294, 33 L.Ed.2d 222 [441 Md. 10] (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 ...