Leveraging a Lie: Armed Drug Dealer Challenges Conviction Based on Dirty Cop’s Conduct

by Van Smith

Published in City Paper, Mar. 16, 2011

The fallout from former Baltimore Police Detective Mark Lunsford’s 2010 conviction for theft and lying continues. On March 9, an attorney for an armed drug dealer argued in a federal court filing that her client’s 2008 guilty plea should be vacated because Lunsford admitted to the FBI that he concocted information in the case. The defense attorney, Marta Kahn, represents 36-year-old Cortez Leon Fisher, who is serving a 10-year sentence in a federal prison in New Jersey based on a 2008 guilty plea he tendered prior to knowing of Lunsford’s deceit.

Kahn wrote that Lunsford, who was assigned to the U.S. Drug Enforcement Administration, admitted to the FBI that he falsely attributed information used to target Fisher to a source other than the one who actually provided it. Kahn argued that Lunsford’s concealment of the truth in her client’s case likely went further, following a pattern of making up facts to build probable cause to arrest suspects, raid their homes, and steal their property.

The theft and lying charges against Lunsford were filed in September 2009 (The News Hole, Sept. 24, 2009), and were accompanied by raids that turned up suspicious items in his Sykesville home, including jewelry and $46,600 in cash. Among the jewelry seized from his home were 10 watches and numerous necklaces, bracelets, rings, and chains (The News Hole, Sept. 30, 2009).

Lunsford pleaded guilty last year (The News Hole, April 14, 2010), and was sentenced to 20 months in federal prison. His criminal conduct has affected a number of cases he worked on (“Costly Charges,” Mobtown Beat, Nov. 11, 2009), including a recently concluded federal trial that resulted in jury convictions of two men with direct ties to drug cartels in Mexico (“Corner Cartel,” Feature, Feb. 23).

In an earlier pleading Fisher made last year, before Kahn was appointed to represent him, he claimed that Lunsford “set me up and arrested me unlawfully” and that prosecutors may have withheld their knowledge of Lunsford’s misdeeds. Fisher contended that the informant in the case “never gave” Lunsford “information concerning drug activities” at Fisher’s home, and that Lunsford, after arresting Fisher, “returned to my apartment later and took a safe containing all my jewelry and personal property.”

Fisher asked the court to order the return of the stolen property, including “my watch which contains numerous diamonds with blue and red designs as details.” And since none of Lunsford’s alleged misdeeds were in evidence when Fisher pleaded guilty, he asked that his indictment be dismissed and his guilty plea overturned.

The prosecutor in the case, Assistant U.S. Attorney Philip Jackson, responded that “the Government denies that at the time of Fisher’s plea and sentencing that it had any knowledge of the facts” leading to Lunsford’s conviction. Jackson also argued that Fisher is not entitled to have his guilty plea overturned because Lunsford’s deception was not about Fisher’s conduct—which, given the guilty plea and other evidence in the case, was accurately portrayed—but about how he learned of it. In addition, Jackson stated that any property that can be identified as Fisher’s that was seized from Lunsford “will be returned to him.”

U.S. District Judge J. Frederick Motz, who accepted Fisher’s guilty plea and will decide whether the case ultimately will be overturned, initially sided with the government—though, in his ruling last summer, he noted that “the circumstances giving rise to Fisher’s motion are quite disturbing.” In September, after Kahn was appointed to represent Fisher, Motz changed course and allowed further pleadings on the issue.

The court records in Fisher’s case include a redacted FBI document, dated Oct. 23, 2009, memorializing Lunsford’s admission that he fabricated source information and has a history of run-ins with Fisher and his family. Lunsford said a person other than the source named in case reports “was the real informant on the CORTEZ FISHER case,” the document states, adding that Lunsford’s “association with FISHER’s family goes back to his time in patrol when he was in the Murphy Homes projects” and arrested Fisher and his brother. The brother, the document states, “was killed in the Murphy Homes later after being released from jail.”

Online court records list Lunsford as an officer involved in three state indictments against Fisher between 2000 and 2004, all of which were later shelved by prosecutors. The charges involved drugs, guns, or both.

In 2004, Fisher pleaded guilty in federal court to being a convicted felon in possession of a firearm and ammunition, and was sentenced to 36 months in prison. After his release, while still on federal probation, he was charged again based on Lunsford’s ill-founded investigation—triggering, once he pleaded guilty, an additional 12-month sentence.

Now Fisher wants to turn back the clock and make the judicial system reconsider his case in light of Lunsford’s misconduct.

“Mr. Lunsford’s credibility is, at this point, all but non existent,” Kahn wrote. “His conduct was part of a widespread criminal scheme to get rich by falsely implicating and stealing from citizens. His claims about his conduct in this case need to be made in open court, under oath, subject to cross-examination, on the record at an evidentiary hearing before any accurate judgment about the reliability of his statements can be made.”

Guilty Pleas in the Berg Brothers Recycling Case

by Van Smith

Published in City Paper, Dec. 16, 2010

Yesterday in U.S. District Court in Baltimore, Adam Berg of Berg Brothers Recycling, along with the company and a co-conspirator, Jeffrey Mark Harmon, pleaded guilty to charges of bribing a government official, Robert Barry Adcock, in connection with recyclable metals delivered to Berg Brothers from the National Security Agency (NSA). Adcock, a civilian NSA employee responsible for waste removal, is scheduled for rearraignment on Dec. 21.

The first indication that Berg Brothers was the target of a criminal investigation was in 2009, when City Paper observed the company’s offices being raided by the Department of Defense Criminal Investigative Service agents. This summer, the indictment came down, charging Berg, the company, Harmon, and Adcock with a bribery conspiracy that deprived the NSA of full payment for the recyclable metals the agency provided the company.

The pleas are being entered not in answer to the grand jury indictment, but to superseding charges. Harmon’s plea agreement (see below) includes extensive factual background about the scheme.

Truth or Consequence: Cop Credibility Undermines Two Federal Cases Built on Baltimore Police Traffic Stops

by Van Smith

Published in City Paper, Dec. 15, 2010

U.S. District Judge Richard Bennett tossed out evidence in a gun case Dec. 6 because, as he wrote in his opinion, the testimony of the Baltimore police officers who arrested the defendant “simply strains credulity.” In September, U.S. District Judge J. Frederick Motz did the same in a heroin case.

In both instances, the evidence was obtained as a result of traffic stops for minor infractions, and was at issue during motions hearings at which the arresting officers testified. In both cases, the officers’ credibility did not survive scrutiny, raising questions about the efficacy of the police practice of using minor traffic violations as a pretext for going after major crimes.

The most recent case charged Travis Gaines with being a felon in possession of a firearm. Gaines was arrested in January near Pennsylvania Avenue and Mosher Street by three members of the Central District Operations Unit: Jimmy Shetterly, Frank Schneider, and Manuel Moro, according to Bennett’s written opinion. Two of them were allegedly assaulted by Gaines after one of them patted him down and found a gun in his waistband. The problem, Bennett wrote, was the officers’ reason for pulling over the car in which Gaines was a passenger: that they saw a crack in its windshield.

“This Court does not believe it was possible for the police officers to see the crack in the windshield,” Bennett wrote, so “the gun must be suppressed as the fruit of the illegal stop”—despite Gaines’ alleged assault of the officers, since it occurred after the unlawful search. The “gun was discovered before the assault, and the fact that Mr. Gaines engaged in allegedly unlawful behavior after the discovery of the gun does not expunge the government’s unlawful conduct in making an illegal traffic stop” (emphasis in the original).

U.S. Attorney Rod Rosenstein says his office is “reviewing the case and there is a strong probability that we will appeal” Bennett’s ruling. In the second case—against Stephen Chester, who was charged with possession with intent to distribute heroin—Rosenstein’s office did not appeal Motz’s ruling to throw out the government’s evidence, but instead opted to dismiss the charges against Chester.

Motz did not issue a written opinion in Chester’s case. But the courtroom drama exposing the false testimony of the police who took the stand during the motions hearing is reflected in the transcript.

During the Aug. 31 hearing, two Baltimore Police detectives—Timothy Stach and Jamal Harris—testified that they and other officers pulled over Chester’s car on April 16, 2009, in the Mondawmin Mall parking lot, because they saw he wasn’t wearing a seatbelt; and that they flashed their unmarked police vehicles’ lights as they conducted the traffic stop so that the defendant would know they were police. Yet, on cross examination, defense attorney Chris Nieto of the Office of the Federal Public Defender played video footage of the stop, which convinced Motz that the detectives’ version of events was false.

“I think that the video speaks for itself,” Motz said to Assistant U.S. Attorney Christine Celeste at the end of the hearing, as he granted the defense motion. It’s “a scenario where there’s certainly a reasonable inference that Mr. Chester thought he was being robbed. And that sort of makes . . . your case fall apart.”

It is “rare” for evidence to be thrown out in federal cases, Rosenstein says, because “these cases are carefully reviewed” by his office before they are charged. Prosecutors first sift through the police reports and then they “meet with the police officers face-to-face and interview them about the facts,” a process that “screens out potential problems.” But it is still “possible that new evidence might come up, and that’s what happened in the Chester case.”

“The video,” Rosenstein adds, “shows that [the police detectives’] testimony is incorrect.” While he declined to comment specifically about any repercussions from the Chester case, he says “whenever there are concerns about officers’ credibility, we discuss it with departmental officials.”

Baltimore Police spokesperson Anthony Guglielmi says “we obviously take extremely seriously” any instance when police credibility on the witness stand is found lacking, and such cases are “normally referred to internal investigations” to probe whether or not disciplinary proceedings are in order. Because Bennett’s ruling in the Gaines case happened only recently, Guglielmi was not in a position to discuss the status or existence of such a probe. By press time, he had not produced any information about any repercussions for the officers who testified in the Chester case.

As for the practice of pulling people over for traffic violations in pursuit of larger crimes, Rosenstein says “as a police tactic, it is useful. A lot of times, all it results in is a traffic citation. But in other cases, the result is a major arrest for drugs or guns. It is part of [a police officer’s] job to stop people for traffic violations,” he adds, and the tactic “is accepted by the [U.S.] Supreme Court as good police work.”

But the defense attorneys for Gaines and Chester say it comes with a price—the confidence and trust regular, law-abiding citizens place in their law enforcers.

“For every suspect traffic stop that results in the recovery of contraband,” Nieto says, “there are countless more involving law-abiding citizens whose rights are violated when they are pulled over, removed from their cars, and searched for no reason.” Those instances don’t receive public attention because “the people involved are never charged with a crime.” Yet, Nieto continues, “These citizens are the same people that sit on our city juries, who hear Baltimore City officers testify, and are asked to believe every word they say. It surprises me that prosecutors and the police department don’t understand that it is this type of bullying that contributes to our city’s juries being so skeptical and distrusting of Baltimore City police.”

Nieto’s colleague in the public defender’s office, Joseph Evans, who represented Gaines, adds, “The larger point is that people are beginning to realize that this is very counterproductive. It generates disrespect for the law and law enforcement and creates a lot of antagonism in African-American communities in particular against law enforcement. And this is actually a shame.”

Loon’s Feather

My beach hat

It’s a fool’s errand, trying to paddle on a tube. Each stroke spins the float, so attempts at forward motion just look arduous and silly. I gave up trying to get anywhere just as I noticed the pair of loons.

They’d been noticing me already, and were surprisingly nonplussed. I’m used to them being skittish even from a good distance, quick to dive away. But these two seemed to care less as I drifted closer. The female cooed a bit, preened some, gave me a look, preened some more. The male watched me calmly. This went on for what seemed like quite a while.

I came within 25 yards of them. Must’ve made quite a sight, splayed belly up atop the tube, motionless with a kayak paddle in my hands. While they regarded me, I noticed something nearby: a feather resting atop the sea’s surface, one she’d just shed.

I stayed perfectly still. We were on a collision course, the feather and I. Closer, closer, I reach down and grasp it between my thumb and forefinger. Now it’s affixed to my beach hat, a gift from a loon.

PandemArt: I Asked Our Kids to Leave Their Screens and Make Some Art, and They Did

By Van Smith

Baltimore, May 20, 2020

For our kids, an addictive screen-based existence suddenly has become essential to ongoing learning and socialization while cooped up in the house all the time due to the pandemic. This contradiction – a requisite addiction – has prompted much stress-inducing parental hand-wringing followed by a barrage of changing regulatory schemes to manage the new and troubling lifestyle. Among them has been an ongoing edict to engage in demonstrably analogue activities on the regular.

“Make some art,” I said, as I masked up and put on my helmet to go get some needed commodities. By the time I got back, they’d done exactly that.