McCree v. State
105 A.3d 456
Md.2014Background
- McCree was charged and convicted under Md. Code Ann., Crim. Law § 8-611 for willfully possessing and displaying 206 DVDs that an expert testified bore counterfeit marks; he was sentenced to 10 years (9 suspended) plus probation.
- McCree moved to dismiss, arguing § 8-611 is facially overbroad (violates First Amendment) and facially void-for-vagueness (violates Due Process); trial and intermediate appellate courts rejected those challenges; certiorari was granted.
- § 8-611(b) criminalizes willful manufacture, production, display, advertisement, distribution, offering for sale, sale, or possession with intent to sell/distribute goods/services known to bear or be identified by a counterfeit mark.
- The statute defines “counterfeit mark” and “intellectual property” broadly (including unregistered trademarks, labels, terms, designs, or words), and defines “retail value” as the counterfeiter’s selling price; penalties vary with aggregate retail value ($1,000 or more = felony).
- The Court analyzed the statute’s plain language, applied noscitur a sociis and other canons, and framed the questions as whether § 8-611 (1) is facially overbroad under the First Amendment and (2) facially void-for-vagueness under the Due Process Clause.
Issues
| Issue | McCree's Argument | State's Argument | Held |
|---|---|---|---|
| Whether § 8-611 is facially overbroad under the First Amendment | § 8-611 reaches noncommercial displays/distributions (e.g., signs, pamphlets) and unregistered marks, thus chilling protected speech | The statute targets commercial activity (goods with "retail value" intended for sale), so it does not reach protected noncommercial speech | Not facially overbroad — statute applies only to goods with retail (selling) value and is therefore aimed at commercial, unlawful activity (counterfeiting) |
| Whether § 8-611 covers goods not intended for sale (scope of "display" and "distribute") | "Display"/"distribute" are unqualified and thus sweep noncommercial acts | Read in context (with manufacture, sale, offer for sale, etc.), display/distribute are commercial in nature and tied to selling intent/retail value | "Display"/"distribute" are interpreted in commercial context; statute does not criminalize mere noncommercial display/distribution |
| Whether § 8-611’s coverage of unregistered labels/terms makes it overbroad | Inclusion of unregistered marks means statute reaches a broad swath of expression | Statute targets marks that function as identifiers of goods/services (those that would be subject to registration); overbreadth must be substantial relative to legitimate sweep | Not overbroad — statute targets identifiable trademarks (registered or registerable) and any overbreadth is not substantial relative to the legitimate reach |
| Whether § 8-611 is facially void-for-vagueness (definition of "intellectual property") | Definitions (e.g., "label, term, device, design, or word adopted or used") are limitless and unclear; ordinary people might guess at meaning | The statute provides clear, ascertainable standards (adopted/used to identify goods/services); canons of construction support this reading | Not facially void-for-vagueness — terms give fair notice; qualifying phrase applies to entire list; statute supplies adequate standards for enforcement |
Key Cases Cited
- Grayned v. City of Rockford, 408 U.S. 104 (First Amendment overbreadth principle)
- United States v. Williams, 553 U.S. 285 (overbreadth must be substantial relative to legitimate sweep)
- Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (commercial speech has limited First Amendment protection)
- Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328 (commercial speech concerning unlawful activity is not protected)
- City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (vagueness doctrine and facial challenges)
- FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (fair notice/vagueness standards for regulated parties)
- N.Y. State Club Ass’n v. City of New York, 487 U.S. 1 (facial challenge standards)
JUDGMENT: Court of Appeals affirmed the Court of Special Appeals; § 8-611 is neither facially overbroad nor facially void-for-vagueness; petitioner to pay costs.