Petition — Spector v. Maryland

Supreme Court brief1981

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P Office -Supreme Cx as

oe. &

° 80-1675 |

ALEXANDER L. STEVAS,

CLERK

In The

4 C ited S

Supreme ourt of the United States

OCTOBER TERM, 1980

No.

ALLEN B. SPECTOR,

MAURICE R. WYATT,

DONALD H. NOREN,

Petitioners,

= ¥.

STATE OF MARYLAND,

Respondent.

e PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PAUL MARK SANDLER H. RUSSELL SMOUSE RUSSELL J. WHITE

. RAYMOND DANIEL BURKE GEORGE F. PAPPAS 305 W. Allegheny Avenue

FREISHTAT, SCHWARTZ & Suite 351 Towson, Maryland 21204

SANDLER The World Trade Center (301) 821-0070

Suite 1700 Tower Building Baltimore, Maryland 21202

222 E. Baltimore Street (301) 539-6868

Baltimore, Maryland 21202

(301) 727-7740

Attorneys for Attorneys for Attorney for

¢ Allen B. Spector Maurice R. Wyatt Donald H. Noren

QUESTIONS PRESENTED

Re Whether this Court's decision in

Russell v. United States requiring that when

indictments are couched in the generic terms

of a statute, a defendant is entitled to be

apprised of the specific charges against him

upon request, applies to the States, and there-

fore, the refusal of the trial court to grant

Defendants' demands for particulars requesting

disclosure of the specific official duty(ies)

or act(s) of Donald Noren which Maurice Wyatt

and Allen B. Spector sought to influence con-

stituted a denial of their fundamental due pro-

cess and procedural rights under the Fifth,

Sixth and Fourteenth Amendments to the U. S.

Constitution and Article 21 of the Maryland

Declaration of Rights.

2 Whether fundamental due process re-

guired the State, in order to sustain a convic-

tion for bribery pursuant to Article 27, Sec-

tion 23 of the Annotated Code of Maryland, to

prove the official duty(ies) or act(s) of De-

fendnt Noren, which Defendants Wyatt and Spector

allegedly influenced or sought to influence by

the payment of the alleged bribe.

INDEX

TABLE OF CONTENTS

Opinion Below. « «+ «© es e«esese

Jurisdiction o es . o . e . * ” = 2

Constitutional Provisions and

BEeeeeees TaVOLVeG « «© « «© & © eo

Statement of the Case. ..... .

Reasons for Granting the Writ...

COMGCIUSION . «2+ «© oe ew he we ee

Appendix:

Opinion of the Court of

Appeals of Maryland. ....

Constitutional Provisions

and Statutes Involved... .

TABLE OF AUTHORITIES

Cases

Ayre v. State, 21 Md. App.

61 (1974) “ _ + . . . ° * °

Canova v. State, 278 Md. 483

(1976). * — 7 ° - ~ e n e 19,

Cole v. Arkansas, 333 U.S. 196

(1948). 7 © « ° o . ° o e ° °

III

Corbin v. State, 237 Md.

486 (1965). 6 ° ° . * . . .

Cunningham v. State, 190 Md.

578 (1948). e > . . . * . ° .

Faretta v. California, 422

Wile ee, Saar es é€ © « te * *

Herring v. New York, 422

Use. BSF (Sts) «+ «© « 6 te 8

Jackson v. Virginia, 443

O28. 307 (i978) «2 2 eo te eH

Kable v. State, 17 Md. App.

16 tiger © «& & a + & 6 6 ROS

Russell v. United States,

369 U.S. 749

[30G2) « « By 39, 2060p Bho O23

State v. Hazellief, 148

So.2d 28 (Fla. App. 1962) .

United States v. Arthur, 544

F.2d 730 (4th Cir.

1976) - o 7 ° * . > ° aaee 29,

United States v. Brewster,

506 F.2d 62 (D.C.

on OOF 1974). a J . — 7 +. + 26,

United States v. Conlon,

628 F.2d 150 (D.C.

Cir. 1980). + . ° . ° . 7 20,

United States v. Cruikshank,

S2 UiB. S428 (207G) « «© 6 «2 BBs

UNITED STATES CONSTITUTION

Fourth Amendment .... .1, 2, 17,

Sixth Amendment. .... I, 2, 17,

Fourteenth Amendment .I, 2, 17, 18,

STATUTES

Article 21, Maryland Declaration

a ee ee ee To fee or

MD. ANNO. CODE, art. 27,

§23 (Supp. 1980). . Zp, de Ss

De waieis ME ACGPth) « « « ec « 2,

Be GetueGe S20L(G). « «© © 0 © y

W. VA. CODE 61-5A-3 (1977) ...

Page

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

ALLEN B. SPECTOR,

MAURICE R. WYATT,

DONALD H. NOREN,

Petitioners,

Vv.

STATE OF MARYLAND,

Respondent.

PETITION FOR WRIT OF CERTIORARI |

TO THE COURT OF APPEALS OF MARYLAND

The Petitioners, Allen B. Spector, Maurice

R. Wyatt, and Donald H. Noren, respectfully pray

that a writ of certiorari issue to review the

judgment and opinion of the Court of Appeals of

Maryland entered on January 22, 1981.

OPINION BELOW

The Judgment and Opinion of the Court of

Appeals of Maryland entered on January 22, 1981,

which is presently reported at 425 A.2d 197 is

set forth in the Appendix (pp. 1-46).

JURISDICTION

Jurisdiction to review the judgment entered

by the Court of Appeals of Maryland on January P

22, 1981, is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED e

The pertinent text of the United States

Constitution, Amendments V, VI and XIV, §1;

Maryland Declaration of Rights, art. 21; 28

U.S.C. §1257(3); MD. CODE ANN., art. 27, §23

(Supp. 1980); 18 U.S.C. §201(c)(1); 18 U.S.C.

§20l(g); W. VA. Code 61-5A-3(1977), are set e

forth in the Appendix (pp. 47-59).

STATEMENT OF THE CASE

The facts developed at trial were uncon-

troverted. Claiming the State had not proved

a case, none of the Defendants put on a case,

but chose to rest after the State's case.

On September 13, 1973, May 14, 1974, and

May 24, 1974, Dr. Neil Solomon, Secretary of

Health and Mental Hygiene, issued orders e

effecting a moratorium on hook-ups into sewer

systems. Samuel Gorn, Richard Davison, and

Bernard Rome were all developers adversely

affected by the moratorium as it applied to

the Gwynns Falls drainage basin in Baltimore

County, Maryland. They all sought relief from

the Department's Board of Review in the form

of exceptions from the moratorium.

At all relevant times, the Defendants

were engaged, at least part of the time, in

the private practice of law in Baltimore City.2/

Defendant Noren also held a position as an

Assistant Attorney General and was assigned to

represent the Environmental Health Administra-

tion before the Board of Review on the question

of exceptions from the moratorium. He was res-

ponsible for representing Dr. Solomon's posi-

tion in favor of the moratorium.

Allen B. Spector was a member of the Bal-

timore Crunty Council, and subsequently

qualified as a judge of the District Court

of Maryland on June 22, 1977. Maurice R.

Wyatt served as the Appointments Secretary

to Governor Marvin Mandel. Donald H. Noren

was Mr. Wyatt's partner in the law firm of

Della and Wyatt.

Each of the developers retained Defendant

Spector for assistance, and paid fees of $10,000

(Gorn), $5,000 (Davison), and $5,000 (Rome) to

Defendant Spector and the law firm in which he

was a partner, then known as Spector, Zerwitz

and Kirk. Defendant Spector shared these fees

with Defendant Wyatt, who worked on each of

these cases with Defendant Spector, by sending

him checks drawn on the firm account in the

respective amounts of $5,000 (Gorn), $3,000

(Davison), $1,600 (Rome) and $1,700 (Rome) .2/

Defendant Wyatt subsequently shared each of

these fees evenly with his partner, Defendant

Noren.

At the hearings for each of the developers

before the Board of Review, Defendant Spector

never appeared as opposing counsel to Defendant

Noren. Further, numerous developers received

relief by way of exceptions from the Board of

The fee from developer Rome was paid in

two $2,500 installments, the first after

a hearing was obtained before the Board of

Review, and the second upon obtaining suc-

cessful relief from the moratorium.

Review on the same days relief was granted to

developers Gorn, Davison and Rome. In fact,

Dr. Solomon was "up in arms and very discour-

aged" because the Board of Review was granting

such wholesale and sweeping relief to develop-

ers that it was tantamount to overruling his

moratorium order. Despite his disturbance at

the Board's regularly granting this hardship

relief to developers, he recognized and testi-

fied that the builders were treated by the

Board pretty much on an equal basis.

Throughout this tumultuous period marked

by frequent newspaper articles and heated com-

munity debate, Defendant Noren impressed his

colleagues and superiors alike as responsible

and fair in all cases before the Board, giving

no developer special treatment. Indeed, no one

observed any improper, illegal or immoral be-

havior by Defendant Noren, and all developers

were treated equally.

Nonetheless, indictments were sought by

the State and eventually returned by the Grand

Jury of Baltimore City charging Defendants

Spector and Wyatt with illegally paying

money to Defendant Noren "for the purpose

of influencing him in the performance of his

official duties in violation of Article 27,

Section 23, Annotated Code of Maryland."

This statute provides, in pertinent part,

that if any person shall bribe or intend to

bribe any officer or employee of the State

"in order to influence any such officer or

person in the performance of any of his

official duties ..." or if any officer of

the State "shall demand or receive any bribe,

fee, reward or testimonial for the purpose of

influencing him in the performance of his

official duties, or for neglecting or failing

to perform the same, every such person so

bribing or attempting to bribe any of such

officers or persons and any such officers or

persons so demanding or receiving any bribe,

fee, reward or testimonial shall be deemed

T 5

guilty of bribery." (App. 55) The indict-

ments were couched in the generic terms of

this statute.

On January 16, 1980, prior to entering

a plea of not guilty in the indictments, De-

fendants, Spector, Wyatt and Noren, filed De-

mands for Particulars to each of the indict-

ments pertaining to him. (E. l, 3). 3/

The first item requested in the Bills of

Particular was:

The specific official duty(ies)

or act(s) of Donald H. Noren, which

the defendant allegedly influenced

or sought to. influence by the pay-

ment of the alleged bribe. (E. 3)

The second item was:

The specific influence, which the

payment of the aforesaid bribe had

or was intended to have upon the

»fficial duties of Donald H. Noren.

(E. 3)

On January 30, 1980, the State filed

"State's Answer to Defendant's Demand for Par-

3/ Since all pleadings relating to particulars

were filed by all Defendants but at differ-

ent times, collective reference to them will

be made herein since identical issues were

raised in each. All references are to

specific portions of the record extract

as reguired by Rule 21.1.(h) of this Court.

~_ =

ticulars," wherein the State took exception

to the Demand for Particulars on the ground

that the demand was outside the "proper use

of Maryland Rule 730." (E. 6)

Upon receipt of the State's Answer, the

Defendants, on February 4, 1980, filed excep-

tions to the State's refusal to answer Defen-

dants' Demand for Particulars. (E. 8)

On April 25, 1980, Judge Perrott conducted

a pre-trial hearing on the issue of the Defen-

dants' request for Particulars. During that

hearing Judge Perrott posed the following ques-

tion:

"Why shouldn't the defendant know

the official duties or acts of

Noren which were sought to be in-

fluenced? I don't understand the

State's reluctance to disclose

that." (E. 12-13)

The Court opined that Item #1 of Defendants’

request for particulars, namely the request

for the State to identify the specific duty

or act of Noren which Spector allegedly in-

fluenced or sought to influence, was properly

discoverable by a bill of particulars, and

instructed the State to "thoroughly answer

Question One." (E. 15)

After this hearing, the State, on April

28, 1980, filed "State's Amended Answer to

Defendants’ Demand for Particulars. This res-

ponse provided as follows:

Ae Part of the duties of Donald

H. Noren, as an Assistant Attor-

ney General assigned to the De-

partment of Health and Mental

Hygiene was to represent that

department before the Board of

Review which determined whether

grounds existed upon which to

base the granting of exceptions

to any moratorium handed down

by the department. It was Mr.

Noren's duties before the Board

of Review that Mr. Spector and

Mr. Wyatt influenced or sought

to influence. (E. 16) (Em-

phasis added.)

On April 29, 1980, Defendants filed Excep-

tions to the State's Amended Answer, stating

that the Answer was not responsive, did not

comply with the letter or spirit of the Court's

ruling of April 25, 1980, and did not provide

sufficient particulars to enable the Defendants

to understand the alleged offense committed.

o (E. 19)

A hearing concerning these Exceptions

was conducted on April 30, 1980. Judge Perrott

made the following ruling in a written opinion:

"It is the opinion of this Court

that the State should include in

the answer the particular respon-

sibilities Mr. Noren had with re-

ference to the Board of Review

which are relevant to the charges

in this case. W'thout this infor-

mation, the preparation of the de-

fendants' case might be unduly

prejudiced; however, it should be

noted that the Court is not re-

guiring the State to disclose the

specific transaction on which Mr.

Noren was allegedly paid to act

for the benefit of Defendants

Spector and Wyatt. Only an enumer-

ation of Mr. Noren's responsibility

involved in the instant charges, not

a description of the particular ac-

tions Mr. Noren was allegedly to

have engaged in, must be disclosed

by the State in its answer to the

Demand for Particulars." (E. 21).

(Emphasis added. )

On May 1, 1980, the State filed State's

Second Amended Answer to Defendants' Demand

for Particulars, saying:

That the duties of Donald H..

Noren as an Assistant Attorney

General for the State of Mary-

land assigned to the Department

of Health and Mental Hygiene in-

clude, but are not limited to:

ol6@

qd)

representing the Department

as counsel before the Board

of Review;

preparing Stipulations of

Fact to be vresented before

the Board of Review;

meeting with aggrieved par-

ties of moratoriums or their

counsel;

aiding in the preparation of

disputes presented before the

Board of Review; and

arguing for the enforcement

of all applicable sections of

Article 41 of the Annotated

Code of Maryland and the Rules

of Procedure of the Board of

Review. (E. 22)

On May 2, 1980, Defendants filed Excep-

tions to the State's Second Amended Answer

to Defendants'

stating:

Demand for Particulars,

"The demand requests that the

State disclose what specific

official duty(ies) of Donald

H. Noren was allegedly influ-

enced or sought to be influ-

enced. The response merely

enumerates some and not all

of Mr. Noren's duties. The

response does not indicate

which of these duties was

allegedly influenced. The

response infers that there

are other duties not listed

therein, which may be rele-

vant at trial.

Defendants are entitled to

know precisely which official

alije

duty(ies) of Noren's was in-

fluenced or sought to be in-

fluenced. The nondisclosure

of the information requested

subjects the Defendants to

Surprise, prejudice and an in-

ability to properly prepare

their defense. ..." (E. 25)

On May 5, 1980, Judge Perrott again con-

ducted a hearing on the Defendants' Request for

Particulars, and issued a written ruling on

that same date, which provided as follows:

The State is hereby ordered to

strike the words "but are not

limited to” in paragraph one of

the Amended Answer;

The defendants’ exception to the

State's Amended Answer is other-

wise overruled. The Court finds

that the defendants are not en-

titled to any further particular-

ization of duties of Mr. Noren i

‘which the defendants Wyatt and

Spector, allegedly sought to in-

fluence in this case. (E. 28)

Thereafter, Defendants again attempted to ob-

tain this information, which they considered

essential in order to prepare a proper de-

fense, by filing a Supplemental Motion for

Discovery, which the Court denied on June 2,

1980.

29)

oi 2=

Trial commenced before Judge James Macgill

on June 5, 1980. During the course of trial,

defense counsel several times communicated

what they believed to be prejudice and sur-

prise as a result of their not obtaining the

particulars, including during a Motion for

Judgment of Acquittal:

- « « [F]rom the very begin-

ning of the case, the Defen-

dants have asked, pleaded,

almost wore out their welcome

before the Court, in asking

- « « for the specific act

- « « [H]ow can a defense go

forward when we don't know

eo © «© eo” (E. 232)

During closing argument, the State, for the

first time, identified the alleged acts which

Noren either committed or attempted to commit.

With regard to the first charge of bribery

involving Samuel Gorn, the State said:

"That is, in fact, exactly what

he did. He [Noren] got Sam Gorn

before the Board on the first

possible day." (E. 238)

With regard to the second charge of bribery

involving a Richard Davison, the State said:

=13=

"., . . [O]n October the 22nd,

'1974, an executive session is

held. An executive session

again, is a meeting whereby the

Board of Review determines what

they will do in a particular

case which they already heard.

Mr. Davison's case comes up.

Mr. Noren has not done anything,

Your Honor. He has not done a

thing to prevent this from occur-

ring. What happened? He is

granted relief. He is granted

the relief he wants. What facts

have changed, Your Honor, between

the date of the first hearing and

the second hearing and August and

October the 22nd? Not a thing.

The facts are exactly the same on

this day as they were over a month

and a half ago, but today he gets

what he wants." (E. 241)

The State inferred that Noren directly

influenced the Board.— Later in rebuttal,

the State argued that Noren could have filed

a mandamus action to prevent Davison from

obtaining his relief, suggesting that this

4/ The trial court discussed the defense's

objections to this line of argument dur-

ing colloguy at the Bench after the

State's closing argument, (E. 248), and

in its Memorandum and Order denying the

new trial motions (E. 60), concluding

that the State had wide latitude in which

to argue inferences to be drawn from the

evidence.

wisn

was Noren's impropriety. With regard to

Bernard Rome, the State arqued that Rome

was frustrated and unable to have stipula-

tions approved, or obtain a hearing before

the Board, and thus contected Spector.

Following closing argument, defense counsel

approached the bench and again reiterated

the problem concerning particulars:

". . . (T]he cat is out of the

bag .. . [W]hat I'm suggesting

is that when we asked for parti-

culars, time and time again we

meant that in order to understand

the charges against us, in order

to prepare a defense, in order to

appropriately and properly ques-

tion witnesses, that we had no

way -- we had to know what the

State was claiming that Noren did

wrong. If we didn't have that in-

formation, we were shadow boxing.

This is the first instance that I

have observed a specific act sug-

gested, for example, with regard

to Noren. I'm finally hearing,

Noren influenced the Board, that

Noren didn't act vigorously at

the Board hearings. These are

important points that defense

had a right to know earlier."

(E. 246-247)

The three Defendants were convicted of

three separate charges of bribery on June 20,

1980. In finding the Defendants guilty, the

«iSe

Court stated that it did not find any act in P

fact performed by Noren for payment of the

alleged bribe.

After the Court pronounced the verdict, «

the Court asked for any comment. Defense

counsel requested the Court state for the

record what act Noren intended to do for @

taking the money. The Court responded:

"Well, intention of course in

accepting is locked in the

minds of people who accept 2

bribes." (E. 46)

Defendants filed a Motion for New Trial

again raising the issue that the State failed

to provide sufficient particulars to properly

prepare a defense, but said Motivn was denied.

Each of the Defendants was sentenced on

July 21, 1980, to two years in the care of

the Department of Correction on each of the

indictments. Sentence was suspended in each

instance and each Defendant was placed on two

years unsupervised probation. Additionally,

a $5,000 fine was levied on each of the in-

dictments as to each Defendant.

@16=

A timely appeal was noted to the Court

of Special Appeals of Maryland. The Court of

Appeals of Maryland then issued its writ of

certiorari ex mero motu to "expedite the

ultimate disposition of the proceedings”

Since that Court had already suspended each

of the Defendants from the practice of law.

REASONS FOR GRANTING THE WRIT

WHEN INDICTMENTS ARE COUCHED IN THE GENERIC

TERMS OF THE STATUTE, THE TRIAL COURT'S

FAILURE TO REQUIRE THE STATE TO DISCLOSE

PARTICULARS OF THE SPECIFIC OFFICIAL DUTY(IES)

OR ACT(S) OF DONALD NOREN WHICH DEFENDANTS

WYATT AND SPECTOR SOUGHT TO INFLUENCE CONSTI-

TUTED A DENIAL OF THEIR DUE PROCESS AND PROCE-

DURAL RIGHTS UNDER THE FIFTH, SIXTH AND FOUR-

TEENTH AMENDMENTS TO THE U. S. CONSTITUTION

AND ARTICLE 21 OF THE MARYLAND DECLARATION OF

RIGHTS AND DENIED THEM ANY MEANINGFUL OPPOR-

TUNITY TO DEFEND.

No right of an accused is more important

than the right to have fair notice of the

charges against him. In Cole v. Arkansas, 333

U.S. 196, 201 (1948), this Court recognized

the inviolability of this right:

"No principle of procedural due

process is more clearly estab-

@l]J@

lished than that notice of a

specific charge, and the chance

to be heard in a trial of the

issues raised by that charge,

if desired are among the consti-

tutional rights of every accused

in a criminal proceeding in all

courts, state or federal."

Indeed, the right to be apprised of the charges

against the accused is a fundamental right pro-

tected by the Fifth Amendment right to “due

process,” and the Sixth Amendment right to be

"informed of the nature and cause of the accu-

sation,” under the United States Constitution,

both being applicable to the States through the

Fourteenth Amendment. See, Herring v. New York,

422 U.S. 853, 856-857 (1975); Faretta v. Cali-

fornia, 422 U.S. 806, 818 (1975). It is a

"premise that has never been doubted in our

constitutional system" that one cannot be con-

victed of a criminal offense "without notice

and a meaningful opportunity to defend,"

Jackson v. Virginia, 443 U.S. 307, 314 (1979).

Furthermore, this fundamental right has been

expressly adopted by the people of Maryland in

Article 21 of the Declaration of Rights, (App.

48), requiring such notice of the charge as

will enable the accused to prepare a defense,

and serve to prevent future prosecution for

the same offense. State v. Canova, 278 Md.

483, 498 (1976); Corbin v. State, 237 Md. 486,

490 (1965); Ayre v. State, 21 Md. App. 61, 63

(1974),

In Russell v, United States, 369 U.S. 749,

765 (1962), the Court, quoting from its pre-

vious opinion in United States v. Cruikshank,

92 U.S. 542 (1876), established the following

standard applicable in this case:

"It is an elementary principal

of criminal pleading, that where

the definition of an offense,

whether it be at common law or

by statute, ‘includes generic

terms,' it is not sufficient

that the indictment shall charge

the offense in the same generic

terms as in the definition; but

it must state the species, it

must descend to particulars."

Mr. Justice Stewart, speaking for the Court,

ruled that "[a]n indictment not framed to

apprise the defendant with reasonable certain-

ty, of the nature of the accusation against him

is defective, although it may follow the lang-

uage of the statute." 369 U.S. at 765.

Recently, in United States v. Conlon,

628 F.2d 150 (D.C. Cir. 1980), Senior Circuit

Judge Bazelon specifically acknowledged the

soundness of Russell in ruling that indictments

utilizing the language of the statute must be

supplemented in enough detail to apprise the

accused of the particular offense with which

he is charged. In that case, Judge Bazelon

offered by way of footnote, the following

thoughts:

"The author of the opinion,

speaking only for himself,

notes in the literature a

growing awareness of the

need for openness by the

Government and criminal

prosecutions. Laying aside

entirely the question whether

it is constitutionally re-

quired a significant move-

ment toward greater disclo-

sure is taking place. State

statutes have required it,

trial judges are invoking the

discretionary powers to effect

it, and a growing number of

prosecutors have made it stan-

dard practice. ... A crimi-

nal trial is not ‘a game or a

sporting contest,’ but ‘a ser-

ious inguiry aiming to distin-

guish between guilt and inno-

cence.'" 628 F.2d at 155-156,

note 31.

It follows that the same policy and underly-

ing constitutional requirement must, necessar-

ily, apply to the furnisning of particulars.

Indeed, the function of bills of particulars

in a criminal case is precisely what this

Court sought in Russell; that is, that the

defendant be apprised with reasonable cer-

tainty of the nature of the accusation.

As made clear previously in the Statement

of the Case, Defendants' counsel tried repeat-

edly to obtain particulars, especially disclo-

sure by the State of the specific official

duty(ies) or act(s) of Defendant Noren which

Defendants Wyatt and Spector sought to influ-

ence. Judge Perrott, at first, seemed to

appreciate the plight of the Defendants and

ordered the State to divulge this information.

However, when the State ultimately responded

with a virtual shopping list of Noren's duties

=2le

including “arguing for all applicable sec-

tions of Article 41 of the Annotated Code

of Maryland and the Rules of Procedure of

the Board of Review," Judge Perrott refused

to compel the State to specify further.

The State's behavior assumed a more

odious dimension as the trial unfolded.

After repeated requests during trial by

Defendants" counsel for the particulars

described herein which were met by the

State's response that it could have been

any of Defendant Noren's duties, the State

then*revealed for the first time during

closing argument the specific duties or

acts of Defendant Noren which he allegedly

performed or failed to perform.

Defendants respectfully submit that this

failure of being apprised with reasonable cer-

tainty of the nature of the charge against

each of them is constitutionally impermissi-

ble, deprived them of a meaningful opportun-

ity to defend, and accordingly, requires the

grant of certiorari to the Court of Appeals.

a2%0

There is, moreover, an additional ground

for granting the instant Petition, which is

the conflicting applications given to Russell

by the States.

In Cunningham v. State, 190 Md. 578

(1948), the Court of Appeals held that the

language of an indictment for bribery is

sufficient if laid in the words of the sta-

tute, then Article 27, Section 27, Annotated

Code of Maryland, 1939 Edition. There, the

appellant's contention that the indictment

was too general and prevented preparation

of a proper defense and reliance upon many

authorities including United States v. Cruik-

supra, was unavailing.

In State v. Hazellief, 148 So.2d 28

(Fla. App. 1962), however, the District

Court of Appeal affirmed the dismissal of

bribery informations which failed to state

the particular act, rule or regulation

which the State public employees were to

have performed or executed, and which the

a%3~e

State expected to prove they violated. There

the court relied on Russell v. United States,

supra, quoting at length, for the proposition

that although the language of the statute may

be used in the general description of the

offense, it must be accompanied with a state-

ment of facts to inform the accused of the

specific offense with which he is charged.

The principles underlying Russell are

rooted in the fundamental right to notice of

charges and to a meaningful opportunity to

defend consistent with due process require-

ments of the Fourteenth Amendment, and thus,

certiorari should be granted to resolve the

conflicting interpretations by the States.

If.

FUNDAMENTAL GUARANTEES OF DUE PROCESS RE-

QUIRE THAT THE STATE PROVE THE OFFICIAL

DUTY(IES) OR ACT(S) OF DEFENDANT NOREN

WHICH DEFENDANTS WYATT AND SPECTOR ALLEG-

EDLY SOUGHT TO INFLUENCE IN THAT IT IS

THE ESSENTIAL ELEMENT OF QUID PRO QUO

THAT DISTINGUISHES THE SPECIFIC CRIMINAL

INTENT UNDERLYING BRIBERY FROM THE MENS

REA OF OTHER RELATED CRIMES, SUCH AS

ACCEPTING AN UNLAWFUL GRATUITY.

=—24-

In Kable v. State, 17 Md. App. 16, 23

(1972), the Maryland Court of Special Appeals

defined bribery in explicitly approving a

particular jury instruction as follows:

"There must be an offer of some-

thing of value to a public offi-

cer or official with the inten-

tion that this thing of value

influenced him in the perfor-

mance of his official duties,

and the thing of value must be

received by the public official

with the intention that by re-

ceiving it he will be influenced

in the performance of his public

duty."

The definition of bribery, therefore, requires

intention. Intention in this instance requires

a showing of a specific act or specific subject

matter of the intended influence. Indeed,

Judge Orth said in Canova v. State, 278 Md.

483, (1976), that Art. 27, §23 is not more in-

clusive than common law bribery, but instead

is "declaratory of the common law," and as

such, embodies the basic elements of the

common law. Inherent in the crime of bri-

bery at common law was the element of guid pro

quo, as is embodied in the jury instruction

approved in Kable.

=280

Federal decisions have recognized the

difference between the intent required to

be proven for bribery and that for receiv-

ing illegal gratuities.

In United States v. Brewster, 506 F.2d

62 (D.C. Cir. 1974), a former Maryland U. S.

Senator Daniel Brewster was indicted for bri-

bery and convicted for receiving illegal gra-

tuities. On appeal of that conviction, Judge

Wilkey, speaking for the D. C. Circuit, dif-

ferentiated between the two crimes, and ar-

ticulated the higher standard of proof of

intent required for bribery. The applicable

federal bribery statute, 18 U.S.C. §201 (c)

(1), defines bribery by a public official as

follows:

"Whoever, directly or indirectly,

corruptly gives, offers or pro-

mises anything of value to any

public official or person who

has been selected to be a public

official or offers or promises

any public official or any per-

son to give anything of value to

any other person or entity, with

intent to influence any official

act.”

=-26-

The gratuity section, 18 U.S.C. §201l(g),

defines acceptance of a gratuity in this

language:

"Whoever, being a public official,

former public official, or person

selected to be a public official,

otherwise than as provided by law

for the proper discharge of offi-

e cial duty, directly or indirectly

asks, demands, exacts, solicits,

seeks, accepts, receives, or agrees

to receive anything of value for

himself for or because of any offi-

cial act performed or to be per-

® formed by him."

The Court held that the bribery section im-

plies "a higher degree of criminal intent,"

@ and "makes necessary an explicit guid pro

quo which need not exist if only an illegal

gratuity is involved." 506 F.2d at 71-72.

@ Thus, to demonstrate the requisite criminal

intent for bribery, there must be an explicit

showing of what was to be done in exchange for

@ the thing of value.

Because most state bribery statutes, like

Maryland's, employ language similar to the

Py federal statute's phraseology, "with intent

to influence any official act," and because

o2Fa

State bribery statutes are also "directed

against impairment of the actual and apparent

integrity of public life," the Brewster dis-

tinction, between the specific intent required

for bribery as opposed to the lesser offense

of acceptance of a gratuity, is equally appli-

cable in a state context.

One of the most compelling applications

of Brewster to a state statute was authored

by the Fourth Circuit in considering the West

Virginia bribery law.=/ United States v.

Arthur, 544 F.2d 730 (4th Cir. 1976), in-

volved the appeal of a criminal conviction

for misapplication of bank funds for the

payment of bribes to public officials and

the making of illegal campaign contributions.

In reversing the conviction, the Court held

that there had been a failure to properly

distinguish bribery and goodwill expenditures.

In the opinion, Judge Russell ruled that bri-

bery requires an intended specific exchange,

3/ W. VA. CODE §61-5A-3 (1977). (App. 58).

-28-

and a general expectation of benefit is

not sufficient:

"Not every gift, favor or con-

tribution to a government or

political official constitutes

bribery. It is universally re-

cognized that bribery occurs

only if the gift is coupled with

a particular criminal intent.

That intent is not supplied

merely by the fact that the

gift was motivated by some gen-

eralized hope or expectation

of ultimate benefit on the

part of the donor. ‘Bribery

imports the notion of some

more or less specific quid

pro quo for which the gift or

contribution is offered or

accepted.'" 544 F.2d at 734.

(Citations omitted. )

In view of this requisite criminal intent,

the Court found that it was error to in-

struct the jury that "payment of money to

government officials for the purpose of

obtaining deposits of government funds in

the bank and to influence the judgment of

such officials in connection with such

deposits constitutes bribery," stating:

"If ‘influence’ is given its

broadest meaning, it is clear

that ‘goodwill’ gifts and fa-

vors to and entertainment of

government officials are in-

tended to influence the judg-

-29-

ment of such officials. That

‘is, such expenditures are made

with the hope that the officials

will be more likely to award

government business to the donor

if a favorable business climate @

is created than if such a climate

is not established. But, as is

apparent from the discussion

above, this type of influence

does not amount to bribery."

544 F.2d at 735. od

The trial court, in not requiring the

State to disclose and prove the specific act

which Defendants Spector and Wyatt sought to @

influence Defendant Noren to perform or fore-

go, overlooked the importance of the specific

intent necessary to constitute bribery. More- e

over, Judge Smith's statement for the Court of

Appeals (App. 36) that the Maryland bribery

statute and federal bribery statute contain no e

marked difference coupled with the Court's pre-

vious holdings approving the jury instruction

in Kable and stating that the subject statute ®

embodies the common law, amount to a violation

of the fundamental fairness and guarantees of

due process of law under the Fourteenth Amend-

ment when the Court of Appeals attempts to now

-30<

expand the definition and scope of the statute

to include behavior beyond that which consti-

tuted bribery at common law.

CONCLUSION

For the reasons stated, the Petition for

a writ of certiorari should be granted.

Respectfully submitted,

H. RUSSELL SMOUSE

GEORGE F. PAPPAS

Suite 351

The World Trade Center

Baltimore, Maryland 21202

(301) 539-6868

Attorneys for Maurice

R. Wyatt

PAUL MARK SANDER

RAYMOND DANIEL BURKE

Suite 1700 ;

Tower Building

222 East Baltimore Street

Baltimore, Maryland 21202

(301) 727-7740

Attorneys for Allen B.

Spector

RUSSELL J. WHITE

305 W. Allegheny Avenue

Towson, Maryland 21240

(301) 821-0070

Attorney for Donald H.

Noren

-3l-

APPENDIX

IN THE COURT OF APPEALS

> OF MARYLAND

No. 6]

September Term, 1980

ALLEN B. SPECTOR, MAURM®E R. WYATT

and DONALD H. NOREN

STATE OF MARYLAND

Smith

] Cole

Singley, Frederick J., Jr.

(ret'd, specially assigned)

Orth, Charles E., Jr.

(ret'd, specially assigned)

Morton, James C., Jr.

> (specially assigned)

Thompson, C. Awdry

(specially assigned)

Weant, Edward 0., Jr.

(specially assigned),

4 JJ.

Opinion by Smith, J.

» Filed: January 22, 1981

We shall here affirm the judgments en-

tered against Allen B. Spector, Maurice R.

Wyatt, and Donald H. Noren on three charges

of bribery in violation of Maryland Code

(1957, 1976 Repl. Vol., 1980 Cum. Supp.) Art.

27, § 23.°

i. Background

On September 13, 1973, May 14, 1974, and

May 24, 1974, the Secretary of Health and

Mental Hygiene issued orders effecting a mora-

torium on connections of sewers for new build-

ings in certain areas of Baltimore County.

Samuel Gorn, Richard Davison, and Bernard Rome

were developers adversely affected by the mora-

torium. They sought relief from the Board of

Review of the Department of Health and Mental

Hygiene in the form of exceptions to the mora-

torium.

i The incidents in question took place in

1974 and early 1975. Thus, it would be

the law as it existed then which would

be applicable. Changes since that time

have no effect upon the portion of the

statute relative to this proceeding.

App. 2

Spector, Wyatt, and Noren are members of

the bar. At he times here relevant Noren was

an Assistant Attorney General of Maryland whose

duties included representation of the Environ-

mental Health Administration, a part of the

Department of Health and Mental Hygiene, in

the matter of such exceptions before the Board

of Review. Spector and Wyatt were practicing

lawyers in Baltimore city.”

Spector was a mem-

ber of the Baltimore City Council.

Three indictments were returned against

Spector, Wyatt, and Noren by the Grand Jury of

Baltimore City. The first count of the first

indictment charged that Spector and Wyatt "on

or about September 5, 1974, . . . did unlaw-

fully, willfully, and corruptly pay a bribe,

reward, fee, and testimonial, to wit: two

thousand five hundred dollars . .. to Donald

H. Noren, being then and there an Assistant

Attorney General for the State of Maryland...

for the purpose of influencing him in the per-

Spector qualified as a judge of the Dis-

trict Court of Maryland on June 22, 1977.

App. 3

formance of his official duties in violation

of Article 27, Section 23, Annotated Code of

Maryland. . . ." The second count charged

Noren with having on the same day “unlawfully,

willfully and corruptly receive[d] a bribe"

in that amount from Spector and Wyatt "in the

performance of his official duties" in viola-

tion of Art. 27, § 23.

The second indictment in similar language

charged Spector and Wyatt with having paid a

bribe to Noren in the amount of $1,500 on

October 27, 1974, It likewise charged Noren

in language similar to the first indictment

with having received that sum at that time.

The third indictment in similar language

charged that on February 10, 1975, Spector and

Wyatt paid the sum of $1,650 to Noren as a

bribe. It likewise charged Noren with receiv-

ing such an amount as a bribe at that time.

The statute in question, Art. 27, § 23,

provides in pertinent part:

If any person shall bribe or

attempt to bribe... any

officer or employee of the

State .. . in order to in-

App. 4

fluence any such officer or

person in the performance of

any of his official duties;

and if... any officer or

any employee of the State

- « »« Shall demand or receive

any bribe .. . for the pur-

pose of influencing him in the

performance of his official

duties, or for neglecting or

failing to perform the same,

every such person so bribing

or attempting to bribe any of

such officers or persons, and

every such person so demanding

or receiving any bribe...

shall be deemed guilty of bri-

bery. « « e«

The defendants elected a court trial.

The case was heard in the Criminal Court of

Baltimore by Macgill, 3.°

Each of the defendants was sentenced to

two years in the care of the Department of

Correction on each of the counts. Sentence

was suspended in each instance and each defen-

dant was placed on two years unsupervised pro-

bation. In addition, a fine of $5,000 on each

Pursuant to Constitution of Maryland Art.

IV, § 3A and Maryland Code (1974, 1980

Repl. Vol.) § 1-302, Courts and Judicial

Proceedings Article, Judge Macgill, former

Chief Judge of the Fifth Judicial Circuit,

was recalled from retirement and assigned

to try this case.

App. 5

of the three counts was levied on each of the

defendants.

An appeal was promptly noted to the Court

of Special Appeals. Since pursuant to Maryland

Rule BVI6 we had suspended each of these attor-

neys from the practice of law by reason of

these convictions, we issued a writ of certior-

ari ex mero motu to the Court of Special Appeals

because a by-pass of that court would expedite

the ultimate disposition of these proceedings. a

ii. Appellants' contentions

The appellants claim (1) that since each S

of the indictments was "couched in [the] gener-

ic terms of the statute, alleging payments to

‘influence official duties', [they] were denied rT

apprisal of the specific charges against them,

guaranteed by the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution, »

and Article 21 of the Maryland Declaration of

Rights, when the trial court did not grant de-

mands for bills of particular, which requested

disclosures of the specific official duty(ies)

App. 6

or act(s) of Noren which Wyatt and Spector

allegedly sought to influence"; (2) that in

order to sustain a conviction of bribery pur-

Suant to Art. 27, § 23 “the State must prove

the specific official act(s) or duty(ies) of

Noren, which Wyatt and Spector allegedly

sought to influence, in that it is the essen-

tial element of guid pro guo that distinguishes

the specific criminal intent underlying bribery

from the mens rea of other related crimes, such

as accepting an unlawful gratuity," which it is

contended the State failed to do; (3) that if,

"assuming arguendo the State is not required to

prove the specific act sought to be influenced,

there was [no] legally sufficient evidence of a

corrupt agreement to sustain a conviction of

bribery"; and (4) that the trial court failed

to comply with Rule 735 "when it did not fully

apprise Defendants of their right to trial by

jury on the first day of trial, although such

advice was rendered during a pre-trial pro-

ceeding.”

App. 7

iii. The facts

The trial judge said from the bench in

making his findings of fact:

I must reach my conclusions on

the evidence whether by way of

testimony, or by way of documents

which have been admitted for my

consideration. ©

As the State has said in this case

the evidence, or these cases, there

are three of them being tried to-

gether in effect, the evidence it

relies on to establish these cases

is circumstantial. ®

Circumstantial evidence is not weak-

er, or of a lesser quality than other

kinds of evidence. In these cases,

and as I said before, these cases

have been consolidated for trial,

the evidence establishes beyond a

reasonable doubt, and I do not think

that it is even disputed, that Mr.

Noren, at the time of the incidents

described, was an officer or employ-

ee of the State, an Assistant Attor- @

ney General. I think that the evi-

dence also, in each case, establishes

beyond a reasonable doubt, that Mr.

Noren received payments of money

which were derived from the three

applicants or developers who testi- @

fied, and that he received these pay-

ments from Mr. Wyatt and these pay-

ments were part of the sums received

by Judge Spector, as fees from each

of the applicants. So, in each case,

Mr. Noren, the public official, re- «

ceived something of value derived

App. 8

from the matters pending before the

Department which he represented.

These facts, of course, do not make

him guilty of bribery, nor do they

make Judge Spector or Mr. Wyatt

guilty of bribery. To find one or

more of these defendants guilty of

bribery it must be established be-

yond a reasonable doubt that the

moneys were paid and received pursu-

ant to a corrupt agreement. The

State contends that various inci-

dents described in the evidence show,

circumstantially, that there was such

a corrupt agreement in each instance.

* * *

Before detailing the circumstantial

evidence in these cases, on which,

as I understand it, the State is re-

lying, I should point out that in

these cases, as in others, each spe-

cific incident or detail, in itself,

cannot be considered separately. All

incidents or details, considered cu-

mulatively, are what matter.

Each of the three associations, or

what I will call developers, and I

will refer to them by the names of

the parties who testified as their

representatives, the evidence shows

were placed in serious or desperate

financial straits by the imposition

of the sewer hook-up moratorium on

May 14, 1974. According to the evi-

dence each day the moratorium re-

mained in effect as to them their

financial conditions worsened. The

first two, Mr. Gorn and Mr. Davison,

engaged lawyers who resorted to or-

thodox legal proceedings to get re-

lief for their clients. Colonel

Rome tried the same avenues on his

App. 9

own. The first two, without aban-

doning the counsel they had retained,

turned in addition to Judge Spector.

None of the three, I think it is sig-

nificant to say, could recall pre-

cisely who referred Judge Spector's

name to them. Mr. Gorn, if you be-

lieve this part of his testimony, re-

tained Judge Spector simply to keep

him posted as to what was going on.

Peculiarly, however, according to Mr.

Gorn, he retained Mr. Spector on a

contingent fee basis, contingent on

his securing relief from the morator-

ium and while seeking of that relief

was in the hands of other counsel.

Judge Spector labeled this fee an

"annual retainer.” Mr. Davison went

to see Judge Spector because he felt

that since Judge Spector was a city

councilman, "He knew his way around

in the bureaucracy and could expe-

dite things." Colonel Rome was ad-

vised that a stipulation had to be

prepared with Mr. Noren before he

could get a hearing. He testified

that he had difficulty getting to-

gether with Mr. Noren. Finally, he

retained Judge Spector. He made a

kind of contingent fee arrangement

with Judge Spector, of the five thou-

sand dollar fee requested by Judge

Spector, he agreed to pay $2500.00

after he received a hearing before

the Board of Review and the remain-

ing $2500.00 only if the Board gran-

ted him the relief which he sought.

Of course when I refer to "the Board"

I am referring to the Board of Review.

Rather promptly, after his clients

met with success and after he was

paid the agreed fees, Judge Spector

paid a portion of them to Mr. Wyatt

App. 10

and Mr. Wyatt in turn, and just as

promptly, paid a portion or his por-

tion over to Mr. Noren. It is of

some significance, I think, that the

amounts paid to Mr. Wyatt went into

his personal account and from that

account he paid Mr. Noren who depos-

ited his portions in his personal

account. I think that it is also

of some significance that Judge

Spector's files, aside from the

stipulation prepared for Colonel

Rome, contain, so far as I could ob-

serve, no lawyer's work product done

by him, nor any evidence of any work

done for him by Mr. Waytt. I should

also mention that State's Exhibit 38A

and 38B show that the check for

$1600.00 issued by Judge Spector to

Mr. Wyatt was labeled "Referral-

Butterfield case." Butterfield, as

you will recall, was a case which

involved a personal injury claim

and with which Mr. Wyatt had no con-

nection whatsoever. Likewise, State's

Exhibits 43A and 43B show that the

check in the amount of $1700.00, is-

sued by Judge Spector to Mr. Wyatt

was labeled, "Referral fee." That

was by the secretary, as I recall.

Although it does not appear from the

testimony that Mr. Rome who paid the

fee to Judge Spector, he never had

contact with Mr. Wyatt.

I believe that it was suggested to

me in closing argument that I should

not consider anything as to which

there was no proof, specifically that

Mr. Noren, Mr. Wyatt's partner, knew

the source of the payments remitted

to him by Mr. Wyatt. I think that I,

like a jury, may use my common sense

and experience in life in evaluating

evidence and on that basis it is dif-

ficult for me to believe that persons

App. ll

dealing in commercial transactions,

much less partners and friends, trans-

fer substantial sums of money to each

other without either explanation or~

inquiry. A reasonable inference,

from the evidence, I think would be

otherwise. It was also urged that

the State should have made out a

better case by calling some of the

members of the Board of Review to

show that Mr. Noren, in his relations

with that body, did or did not do any-

thing untowe.d, or something untoward,

I should say. Of course, my role is

not to demand that the State produce

certain elements of proof but it is

simply to evaluate the proof which

the State does produce.

It was also suggested that persons

engaged in bribery are not so fool-

ish as to use checks and other docu-

ments but would resort to cash trans-

actions. I can only say, from my ob-

servation persons engaged in dubious

activities are just as prone to blun-

der as persons engaged in legitimate

activities.

It has been said as to circumstantial

evidence that before a verdict of

guilty is justified, the circumstances

taken together must be inconsistent

with, or such as to exclude, every

reasonable hypothesis or theory of

innocence. I find here no reasonable

hypothesis or theory of innocence

when I consider the circumstances I

have mentioned as well as others in

evidence which I have considered, but

may not have mentioned. In the light

of all of the circumstances, taken

together, I find in each case, beyond

a reasonable doubt, that the moneys

which passed from Judge Spector

App. 12

through Mr. Wyatt to Mr. Noren were

made pursuant to a corrupt agreement

or agreements and constituted bribes

offered and accepted.

Bribery, as you know, has been defined

as "the corrupt payment or receipt of

a private price for official action."

Set forth in State v. Canova, 278 Md.

483, at page 485 (1976).

In view of the conclusions I have

reached, my verdict is that the De-

fendant, Judge Allen B. Spector is

guilty as charged in Indictment Num-

ber 17935501; 17935504; 17935507; Mr.

Wyatt is guilty as charged in Indict-

ment Number 17935502; 17935505;

17935508; and that Mr. Noren is

guilty as charged in Indictment

17935503; 17935506; 17935509.

We shall develop such additional facts as

may be requisite in the course of our discus-

sion of the points raised.

iv. The validity of the indictments

The defendants elected not to challenge

the validity of the indictments in the trial

court but attempt to do so on appeal. Under

Rule 736 a motion asserting a defect ina

charging document must be filed within thirty

days after the earlier of the appearance of

counsel or the first appearance of the defen-

dant before the court "except when discovery

App. 13

is furnished on an issue which is the subject

of the motion, then the motion may be filed

within five days after the discovery is fur-

nighed." Thus, under the rule the point is

deemed waived in the case at bar. There

having been no challenge to the validity of

the indictments in the trial court, their

validity is not before us on appeal. Rule

885.

Vv. The bill of particulars

We point out that although the appellants

suggested in arguments in the trial court that

the indictments did not sufficiently inform

them of the charges against them, at no time

did they mention the constitutional provisions

they have raised here.

The demand for particulars alleged that

each indictment was "so general as not to give

the Defendant sufficient information to pre-

pare a proper defense to the charge." The

particulars demanded included the specific

official duties or acts of Noren which the

App. 14

defendants "allegedly influenced or sought to

influence by the payment of the alleged bribe";

"[t]he specific influence, which the payment

of the aforesaid bribe had or was intended to

have upon the official duties of . . . Noren";

"[{t]he manner in which the State contends

there was any deviation from what it maintains

was the proper conduct by .. . Noren of his

official duties as any such alleged deviations

relates [sic] to the charges contained” in the

respective indictments; the identity of "those

individuals employed by any governmental agency

or unit who had authority with regard to the

matters complained of in the indictment con-

cerning the exercise by .. . Noren of his

official duties," with an indication as to

"the nature of the authority reposed in each

such individual and whether that authority was

exercised or was to be exercised in any manner

in connection with the indictment charged and,

if so, in what manner"; the date of the docu-

ment or documents evidencing the payment of

App. 15

the sums in question, "stating if the alleged

payment was made by check, whose signature

appears on the check" together with the iden-

tity of the custodian of the document; and the

date of the document or documents evidencing

the performance or contemplated performance of

Noren's official duties allegedly influenced or

intended to be influenced by the giving of and

his receipt of a bribe together with the iden-

tity of the custodian of the document. «

The State excepted to the demand. The

matter was heard by Perrott, J., to whom the

case was then assigned. He directed an answer @

to the first demand. Accordingly, an amended

answer was filed stating:

1. Part of the duties of Donald

H. Noren, as an Assistant Attorney Gen-

eral assigned to the Department of

Health and Mental Hygiene was to repre-

sent that Department before the Board

of Review which determined whether

grounds existed upon which to base the e

granting of exceptions to any moratori-

ums handed down by the Department. It

was Mr. Noren's duties before the Board

of Review that Mr. Spector and Mr. Wyatt

influenced or sought to influence.

Exception was again taken. An additional

answer was required. Pursuant to that ruling

App. 16

the State specified:

1. That the duties of Donald H.

Noren as an Assistant Attorney General

for the State of Maryland assigned to

the Department of Health and Mental

Hygiene include, but are not limited to:

a) representing that Department

as counsel before the Board of Review;

b) preparing Stipulations of Fact

to be presented before the Board of Re-

view;

c) meeting with aggrieved parties

of moratoriums or their counsel;

d) aiding in the preparation of

disputes to be presented before the

Board of Review; and

e) arguing for the enforcement of

all applicable sections of Article 41 of

the Annotated Code of Maryland and the

Rules of Procedure of the Board of Review.

Again, exceptions were taken upon which

the court ruled:

741.

1. The State is hereby ordered to

strike the words "but are not limited to"

in paragraph one of the amended answer;

2. The defendant's exception to the

State's amended answer is otherwise over-

ruled. The court finds that the defen-

dants are not entitled to any further par-

ticularization of the duties of Mr. Noren

which the defendants, Wyatt and Spector,

allegedly sought to influence in this case.

The defendants sought discovery under Rule

The State's reply was filed on January 30,

App. 17

1980. (The exceptions to the demand for

particulars were filed on February 4.) The

reply included a statement that upon reason-

able notice to the State the defendants or

their attorneys might “inspect and copy any

books, papers, documents, recordings or photo-

graphs which the State intends to use at trial;

inspect and photograph any tangible objects

which the State intends to use at trial; ...

inspect, copy and photograph any item from or

belonging to [each] Defendant"; and "inspect

and copy all written reports or statements

made in connection with this case by each ex- e

pert consulted by the State." Obviously, among

other things this made available to the defen-

dants copies of the checks which were part of

the evidence in this proceeding. The State's

answer included the names and addresses of

thirty-one persons said by the State to be 6

those then "known that the State intend[ed] to

call to prove its case in chief or to rebut

alibi testimony. ..." The first three indi- @

viduals listed were Richard Davison, Samuel

App. 18

Gorn, and Bernard Rome, the three persons whose

cases were allegedly the subject of the bribery.

Appellants place great weight upon Russeii

v. United States, 369 U.S. 749, 82 S.Ct. 1038,

8 L.Ed.2d 240 (1962), referring to language of

Mr. Justice Stewart for the Court, 369 U.S. at

765, to the effect that an indictment not fram-

ed to apprise the defendant with reasonable

certainty of the nature of the accusation

against him is defective, although it may

follow the language of the statute. That case

is inapposite. The defendants were there in-

dicted pursuant to 2 U.S.C. § 192 for having

refused to answer questions "pertinent to the

question then under inguiry" by a subcommittee

of the United States House of Representatives.

No issue of particulars was involved. In fact,

Mr. Justice Stewart said for the Court, "[I]t

is a settled rule that a bill of particulars

cannot save an invalid indictment." Id. at

770. In the second paragraph of the opinion

the Court said:

App. 19

In each case the indictment re-

turned by the grand jury failed

to identify the subject under

congressional subcommittee in-

quiry at the time the witness «

was interrogated. The indict-

ments were practically identical

in this respect, stating only

that the questions to which ans-

wers were refused "were pertinent

to the question then under in- €

guiry" by the subcommittee. In

each case a motion was filed to

quash the indictment before trial

upon the ground that the indict-

ment failed to state the subject

under investigation at the time e

of the subcommittee's interroga-

tion of the defendant. In each

case the motion was denied. In

each case the issue thus raised

was preserved on appeal, in the

petition for writ of certiorari,

and the brief and argument here. 9

(Id. at 752-53.)

The Court pointed out:

(T]he very core of criminality

under 2 U.S.C. § 192 is pertinen- e

cy to the subject under inguiry

of the questions which the defen-

dant refused to answer. What the

subject actually was, therefore,

is central to every prosecution

under the statute. Where guilt @

depends so crucially upon such a

specific identification of fact,

our cases have uniformly held that

an indictment must do more than

simply repeat the language of the

criminal statute. [Id. at 764.]

It was in this context that the Court said:

App. 20 e

For these reasons we conclude that

an indictment under 2 U.S.C. § 192

must state the question under con-

gressional committee inguiry as

found by the grand jury. Only then

can the federal courts responsibly

carry out the duty which Congress

imposed upon them more than a cen-

tury ago:

"The question must be perti-

nent to the subject matter,

and that will have to be de-

cided by the courts of Jug-

tice on the indictment."

(Id. at 771-72.]

The footnote refers to a quotation (369 U.S.

at 757) earlier in the opinion in which Sena-

tor Bayard, "(t]he principal spokesman for the

bill" which enacted the statute in question,

was said to have "repeatedly made this very

point" on the floor of the Senate when the

matter was under consideration as reported

in Cong. Globe, 34th Cong., 3d Sess. 440

(1857). In short, Russell is concerned with

the validity of an indictment, not with the

issue of whether or not a bill of particulars

should be granted.

The matter of particulars was discussed

for the Court by Chief Judge Prescott in

App. 21

Hadder v.

State, 238 Md. 341, 209 A.2d 70

(1965), where the accused stood convicted of

first degree murder:

Appellant's request asked for a

number of items, including one

for the particulars as to "the

* * * hypothesis of commission"

of the crime charged. We assume

that this was an expression of a

desire to make the State give the

defense its theory of the case.

All of the particulars requested

were furnished except this one,

and the appellant, without citing

a single authority which states

that it is proper to require the

prosecution to state its theory

of a case under a request for par-

ticulars, claims prejudicial error.

The contention misconceives the

right, vel non, to, and the func-

tion and office of, a bill of

particulars. As a general rule,

particulars are not granted as a

matter of right, but the granting

and denial thereof rest in the

sound discretion of the trial court,

Pearlman v. State, supra; however,

the courts of Maryland rightfully

have been quite liberal in granting

such particulars on proper occasion,

and especially when indictments have

been drawn in the short forms per-

mitted by statute.

But bills of particulars are intend-

ed to guard against the taking of an

accused by surprise by limiting the

scope of the proof. Berger v. State,

179 Md. 410; Hunter v. State, 193 Md.

App. 22

596. They have never, to our knowl-

edge, been utilized for the purpose

of requiring the State to elect a

theory upon which it intends to pro-

ceed. As the Court succinctly stated

in Rose v. United States, 149 F.2d

755 (C.A. 9): "The purpose of a bill

of particulars is to secure facts,

not legal theories." In United States

v. Fruehauf, 196 F.Supp. 198 (U.S.D.C.,

S.D.N.Y.), the Court named five theo-

ries upon which the prosecution might

proceed, but denied a motion for a

bili of particulars which asked that

the Government be required "to state

which of the theories it is relying

upon and to state, if its claim is

based upon any other contention or

premise, what such contention or

premise is." See also 4 Wharton's

Criminal Law & Procedure (Anderson),

§ 1867; Anno.: 5 A.L.R.2d, at p. 459;

United States v. Dilliard,10l F.2d

829 (C.A.2), cert. den. 306 U.S. 635.

We hold that, under the circumstances

here involved, the appellant was not

entitled to make the prosecution se-

lect and state its theory of the case.

[Id. at 350-51.]

See also Veney v. State, 251 Md. 159, 163-64,

246 A.2d 608 (1968). In Veney we emphasized

the discretionary nature of a grant of parti-

culars. In Pearlman v. State, 232 Md. 251,

192 A.2d 767 (1963), cert. denied, 376 U.S.

943 (1964), cited in Hadder, Judge Horney

said for the Court:

A defendant is not entitled as of

right to particulars. Rule 715 a

App. 23

provides that on motion by a de-

fendant, the court may order the

filing of a bill of particulars.

But in most cases the grant or

refusal of particulars is within

the sound discretion of the trial

court. Seidman v. State, supra.

And this Court will not reverse a

denial of particulars unless there

has been a gross abuse of discre-

tion resulting in injury to the

accused. Leon v. State, 180 Md.

279, 23 A.2d 706 (1942); State v.

Lassotovitch, 162 Md. 147, 159

Atl. 362 (1932); Neusbaum v. State,

Supra; Lanasa v. State, supra. In

general the rule in other jurisdic-

tions is in accord with that in

Maryland. See the annotation in 5

A.L.R.2d 444, 447. [Id. at 261.]

To similar effect see McMorris v. State, 277

Md. 62, 70, n. 4, 355 A.2d 438 (1976); Willis

v. State, 205 Md. 118, 126, 106 A.2d 85 (1954);

Thomas v. State, 173 Md. 676, 197 A. 296 (1938);

State v. Lassotovitch, 162 Md. 147, 158, 159 A.

362 (1932); Delcher v. State, 161 Md. 475, 482

158 A. 37 (1932); Avery v. State, 15 Md. App.

520, 530, 292 A.2d 728, cert. denied, 266 Md.

733 (1972), appeal dismissed, 410 U.S. 977

(1973), and Wilson v. State, 4 Md. App. 192,

202, 242 A.2d 194, cert. denied, 251 Md. 753

(1968), cert. denied, 394 U.S. 975 (1969).

App. 24

Chief Judge Brune observed for the Court

in Seidman v. State, 230 Md. 305, 312, 187 A.2d

109 (1962), cert. denied, 374 U.S. 807 (1963),

"{A) bill of particulars forms no part of an

indictment and hence cannot make an otherwise

defective indictment good." In Delcher Judge

Pattison said for the Court, "[I]t is...

well settled that, where the indictment is in

the usual form and not demurrable on its face,

it does not become so when considered in connec-

tion with the bill of particulars." Id. at 482.

To similar effect see the passage we have al-

ready quoted from Russell, 369 U.S. at 770,

and Ayre v. State, 21 Md. App. 61, 63. n. 4,

318 A.2d 828 (1974), citing Seidman. Thus,

the argument that without particulars the in-

dictment is void is not a good one both be-

cause the indictment was not challenged below

as well as the fact that particulars are not

taken into consideration in determining the

validity of an indictment.

Twice in their argument in their brief

relative to the bill of particulars the appel-

App. 25

lants suggest that without that which they de-

manded they are unable to protect themselves

against double jeopardy. This is not correct.

In Cunningham v. State, 190 Md. 578, 59 A.2d

337 (1948), Judge Collins said for the Court

in the context of a contention that an indict-

ment for bribery using the words of the sta-

tute “violated fundamental requirements of

certainty in criminal pleading, to enable pre-

paration of a defense and to permit a plea of

former jeopardy":

At the trial of the cases under

these indictments it was necessary

for the State to prove the charges.

If the accused were again charged

with the same offenses, by produc-

ing the records in these cases he

would be able to plead the judg-

ments in any subsequent attempted

prosecution. [Id. at 585.]

This is no less true here. In fact, it is in-

teresting to note that in Russell the Supreme

Court reached a similar conclusion stating:

Since the indictments set out not

only the times and places of the

hearings at which the petitioners

refused to testify, but also speci-

fied the precise questions which

they then and there refused to

answer, it can hardly be doubted

App. 26

that the petitioners would be

fully protected from again being

put in jeopardy for the same of-

fense, particularly when it is re-

membered that they could rely upon

other parts of the present record

in the event that future proceed-

ings should be taken against them.

[Id. 369 U.S. at 764.]

In United States v. Schembari, 484 F.2d

931, 934 (4th Cir. 1973), there was a conten-

tion "that the trial court erred in denying

[the] motion [of the accused] for a more defin-

ite statement .. . to the extent that he was

refused an exact description of those actions

which allegedly constituted his offense." The

court said it construed this "as a motion for

bill of particulars under Rule 7(f) F.R. Crim.

P." Judge Murray responded for the court, "Be-

cause we believe that the underlying objectives

of a Rule 7(f) motion were fully satisfied by

the government's voluntary disclosure of its

file, we can find no abuse of the trial judge's

discretion. See United States v. Sullivan, 421

F.2d 676 (5th Cir. 1970)." Id. at 935.

Here, too, as we have already noted, there

was a voluntary disclosure of its file by the

App. 27

State. The answers filed by the State in

response to the demands of the defendants

for discovery included listing the names and

addresses of all witnesses the State proposed

to call, among whom were the three individuals

whose applications before the board were in-

volved in the alleged bribery scheme here.

The indictments set forth the approximate

dates and amounts of each payment. The file

which the defendants were privileged to exa-

mine would have revealed the checks in the

amounts of the alleged bribes. The particu-

lars specified the duties of Noren. We find

no abuse of discretion by the trial court in

denying the motion for particulars.

vi. The need to prove the offi-

cial duty or duties or act

or acts of Noren

The law of bribery, both at common law

and by statute, was extensively discussed by

Judge Orth for the Court in State v. Canova,

278 Md. 483, 485-93, 365 A.2d 988 (1976). See

also 2 J. Bishop, Criminal Law § 85 (9th ed.

App. 28

1923); 2 H. Brill, Cyclopedia of Criminal Law

§ 1206 (1923); Clark & Marshall, A Treatise of

the Law of Crimes § 14.02 (7th ed. Barnes 1967);

L. Hochheimer, Crimes and Criminal Procedure

§ 400 (2d ed. 1904); R. Perkins, Criminal Law

469 (2d ed. 1969); and 3 Wharton's Criminal

Law and Procedure 1380 (Anderson 1957 and 1979

Supp.). In Canova Judge Orth observed for the

Court:

In Blondes v. State, 16 Md. App.

165, 184, 294 A.2d 661 (1972),

the Court of Special Appeals

said that Art. 27, § 23 is not

" . . » more all inclusive than

common law bribery." The court

observed that upon a literal read-

ing of the constitutional mandate

set out in Art. III, § 50, "...

no directive was given that the

offense of bribery be provided for

by statute; rather it directed leg-

islative enactment of a statute to

punish that common law crime. .. ."”

Id. at 182. It found that the sta-

tute was declaratory of the common

law. We agree that the statute em-

bodies the basic elements of the

common law without extending its

boundaries to persons outside the

ambit of the common law. With res-

pect to the bribe-giver or briber,

the statute now in effect speaks

of "any person," and like the com-

mon law, anyone not entirely with-

out criminal capacity, see Matter

App. 29

of Davis, 17 Md. App. 98, 100,

299 A.2d 856, 858 (1973), may be

a briber. With respect to the

bribe-taker or bribee, however,

the statute designates classes,

and only a person within one of

those classes is a potential

bribee. [Id. at 490-91.]

It is conceded that Noren comes within the

list of persons enumerated in the statute.

Appellants place their principal reli-

ance upon United States v. Arthur, 544 F.2d

730 (4th Cir. 1976), and United States v.

Brewster, 506 F.2d 62 (D. C. Cir. 1974). In

Arthur the accused was the president, a mem-

ber of the board of directors, and a major

stockholder in a small national bank. He

was indicted under 18 U.S.C. § 656 which

makes it unlawful for an officer or direc-

tor of any national bank to embezzle, abstract,

purloin or willfully misapply “any of the mon-

eys, funds or credits of such bank. ..." He

received funds from an account which apparently

contained the bank's profit from the sale of

credit life insurance in connection with its

loan operations. He said he used the money

App. 30

thus obtained to entertain, do favors, and

buy gifts for state and party officials who

might be influenced in securing government

deposits for the bank. It was the govern-

ment's position that this testimony, if be-

lieved, disclosed the use of bank funds to

pay unlawful bribes and to make illegal poli-

tical contributions which would constitute a

misapplication of the funds in violation of

the statute in question. The court observed,

"Not every gift, favor or contribution to a

government or political official constitutes

bribery. It is universally recognized that

bribery occurs only if the gift is coupled

with a particular criminal intent," citing

cases. Id. at 734. Referring to Brewster,

it stated, ""Bribery' imports the notion of

some more or less specific guid pro quo for

which the gift or contribution is offered

or accepted." Id. It further said:

This requirement of criminal

intent would, of course, be

satisfied if the jury were to

find a “course of conduct of

favors and gifts flowing” to

App. 31

a public official in exchange

for a pattern of official ac-

tions favorable to the donor

even though no particular gift

or favor is directly connected

to any particular official act.

United States v. Baggett (4th

Cir. 1973) 481 F. , cert.

denied 414 U.S. 1116, 94 S.Ct.

850, 38 L.Ed.2d 744 (1973)

(Travel Act prosecution involv-

ing alleged bribery of Maryland

County Commissioner). Moreover,

as the Seventh Circuit has held,

it is sufficient that the gift

is made on the condition "that

the offeree act favorably to the

offeror when necessary." United

States v. Isaacs (7th Cir. 1974)

493 F.2d 1124, 1145, cert. denied

417 U.S. 976, 94 S.Ct. 3183, 41

L.Ei.2d 1146 (1974) (construing

Illinois statute in a Travel Act

prosecution). It does not follow,

however, that the traditional busi-

ness practice of promoting a favor-

able business climate by entertain-

ing and doing favors for potential

customers becomes bribery merely

because the potential customer is

the government. [Id. at 734

(emphasis in original).]

It further said, after reference to the West

Virginia statute “which [it said,] reduced

to essentials, provides that bribery is the

payment or acceptance of '[a]ny pecuniary

benefit as consideration for the recipient's

official action as a public servant or party

App. 32

official

- -’ (Emphasis added)":

The crucial distinction between

"goodwill" expenditures and bri-

bery is, then, the existence or

nonexistence of criminal intent

that the benefit be received by

the official as a quid pro quo

for some official act, pattern

of acts, or agreement to act

favorably to the donor when nec-

essary. [Id. at 735.]

It found that the trial court had erred in its

instruction on bribery because it failed "to

set forth that distinction with sufficient

clarity to enable to jury to determine the

legality of appellant's expenditures" by its

instructions that "payment of

money to Government officials

for the purpose of obtaining de-

posits of government funds in

the bank and to influence the

judgment of such officials in

connection with such deposits

+ « « constitutes .. . bribery

- « « «” If “influence” is given

its broadest common meaning, it

is clear that "goodwill" gifts

and favors to and entertainment

of government officials are in-

tended to influence the judgment

of such officials. That is, such

expenditures are made with the

hope that the officials will be

more likely to award government

business to the donor if a favor-

able business climate is created

than if such a climate is not es-

App. 33

tablished. But, as is apparent

from the discussion above, this

type of influence does not amount

to bribery. [Id. at 735.]

We had occasion to review Brewster in

Attorney Grievance Com. v. Brewster, 280 Md.

473, 374 A.2d 602 (1977). We pointed out that

Senator Brewster was indicted and charged with

five counts of bribery in violation of 18 U.S.C.

§ 201 (c)(1). It defines bribery relative to

a public official as follows:

cial or person selected to be a public

official, directly or indirectly, cor-

ruptly asks, demands, exacts, solicits,

seeks, accepts, receives, or agrees to

receive anything of value for himself

or for any other person or entity, in

return for:

(1) being influenced in his

performance of any official act

The dismissal of the indictment on constitu-

tional grounds was reversed in United States

v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33

L.Ed.2d 507 (1972). The case then went to

trial on three counts of the original bribery

indictment. The jury found him not guilty of

App. 34

bribery but guilty of what the trial judge

held to be the lesser included offense of

receiving an illegal gratuity in violation

of 18 U.S.C. § 201 (g). The D. C. Circuit

reversed, holding that the trial judge failed

to adequately instruct the jury on the dis-

tinction between the acceptance of an ille-

gal gratuity and the acceptance of political

campaign contributions. In the course of

that opinion the court said:

To accept a thing of value “in

return for: (1) being influ-

enced in [the] performance of

any Official act" (section (c)

(1), emphasis supplied) appears

to us to imply a higher degree

of criminal intent than to

accept the same thing of value

“for or because of any official

act performed or to be per-

formed” (section (g)). Perhaps

the difference in meaning is

slight, but Congress chose dif-

ferent language in which to ex-

press comparable ideas. The bri-

bery section makes necessary an

explicit guid pro gquo which need

not exist wars in iiteses gra-

tuity is involved; the briber is

the mover or producer of the

official act, but the official

act for which the gratuity is

given might have been done with-

out the gratuity, although the

gratuity was produced because of

App. 35

the official act. [Id. 506 F.2d

at 71-72.]

It is this language upon which appellants rest

their contentions here.

There is no marked difference between our

bribery statute and the federal statute. How-

ever, in Maryland we have no statute concern-

ing illegal gratuities. The view of a United

States Court of Appeals that the federal sta-

tute requires a guid pro quo, although persua-

Sive, is in no way binding upon us in our de-

termination as to whether the Maryland statute

requires such.

In United States v. Baggett, 481 F.2d

114 (4th Cir. 1973), the accused was indicted

for a violation of the Travel Act, 18 U.S.C.

§ 1952 and 18 U.S.C. § 2. The Travel Act is

significant because it makes unlawful use of

any facility in interstate commerce, including

the mails, with intent, among other things, to

Carry on any unlawful act. In § 1952 b "unlaw-

ful activity" is defined as including “bribery

in violation of the laws of the State in which

App. 36

committed.” Baggett had been a county commis-

Sioner of Prince George's County from 1954 un-

til his resignation in 1970. From 1964 until

his resignation he was chairman of that board

which, as the Fourth Circuit put it, “had final

authority over all zoning matters and proceed-

ings." Id. at 115. He was specifically charg-

ed with causing the interstate movement of a

check drawn in the District of Columbia by a

prosperous builder and developer which check

was used in Maryland to purchase a tractor for

use on Baggett's farm. It is significant that

the Fourth Circuit panel there (which included

the author of the opinion in Arthur) said:

The Government's evidence did not

show a specific quid pro guo from

Baggett to Rocks in return for the

$3500 check. It did show a course

of conduct of favors and gifts

flowing from Rocks to Baggett.

xk &

The many instances of favors and

gifts accepted by Baggett from

Rocks and others receiving favor-

able rulings from the Board of

County Commissioners were ample

to show Baggett's corruption by

the unprincipled greed of a weal-

thy man and Baggett's preference

App. 37

for favors and gifts over his

public duty. The jury was clearly

authorized to draw the inference

and conclusion that the $3500

check represented a payment by

Rocks to Baggett for continuing

favorable zoning rulings. ([Id.

at 115.]

In United States v. L'Hoste, 609 F.2d 796

(5th Cir.), cert. denied, 10.8. , 401 S.

Ct. 104 (1980), the court said it was obliged

to determine "what constitutes bribery under

Louisiana law." Id. at 807. It pointed out

in n. 14 that the Maryland bribery statute

"contains wording similar to the Louisiana

statute before [that] court." Id. The court

said:

The Louisiana statute does not

employ the words "as considera-

tion for" or their equivalent to

express the intended purpose of

the gift. Employed instead are

the words "with the intent to in-

fluence . . . conduct." The in-

quiry under the Louisiana statute,

then, is whether the gift is made,

not as a guid pro quo for specific

action, but with the intent to in-

fluence the conduct of the public

servant in relation to his position,

employment, or duty. We think this

latter ing iry is a broader one than

the inquiry »resented by the West

Virginia statute and that Louisiana

designates as bribery conduct that

App. 38

may well be lawful in West Virginia.

The Arthur definition of bribery,

having been fashioned in a context

inapposite to the one presented in

this appeal, is not persuasive, and

the district court was correct in

rejecting it. [Id. at 807-08.)

The defendants have presented an array

of cases which they say support their position.

We have examined each and no useful purpose

would be served by digesting each of them.

Suffice it to say that for various reasons we

find the cases not apposite. See, e.g.,

People v. Megladdery, 40 Cal. App.2d 748, 106

P.2d 84 (1940), cited for the proposition that

"the burden on the prosecution was 'to charge

and prove that the subject matter upon which

the bribe was to operate existed and could be

brought before the public officer in his offi-

cial capacity.'" This statement is from that

portion of the opinion where the court was re-

viewing a challenge to the validity of the in-

dictment. Id. at 782. The next sentence

states, "The fact the duty is not specifically

conferred upon the officer by statute is imma-

terial." Id. The second count of the indict-

App. 39

ment there alleged that Megladdery was "the

duly appointed, qualified and acting private

secretary to the Governor of the State of

California"; that while he was in such posi-

tion he agreed to receive a bribe “upon an

agreement and understanding and with the

corrupt intent that [his] opinion and action

- « e« upon a matter then pending and which

might be brought [before him] in his official

and public capacity .. . should be unlawfully

influenced thereby" in that he "would approve,

recommend, obtain and procure for [a named in-

dividual] a pardon from the Governor of the

State of California and would use his influ-

ence to persuade the Governor of the State of

California to grant [such] a pardon... ."

It is instructive to note that the court there

said:

4. It is next urged that the

evidence is insufficient to establish

the charge set forth in count two of

the indictment. This contention is

largely based on the arguments urged

in support of the contention that the

indictment was defective, and for the

same reasons is without merit. [In

App. 40

addition, respondent points out that

Governor Merriam testified that at no

time that Megladdery was his private

secretary was it ever a part of his

duties to investigate, recommend,

grant or procure pardons for any per-

son - that it was the duty of another

secretary to assist him with pardon

applications. Obviously, the official

duty of assisting the governor in this

regard was imposed on the department

of which Megladdery was a member, and,

if requested to do so, Megladdery could

have performed the work of the secretary

assigned to the duty of passing upon

applications for pardons. That is all

that is required under the above-cited

cases. Any other rule would permit pub-

lic servants to be false to their trust

and still escape liability on the highly

technical ground that the particular act

for which the bribe was solicited, be-

cause of inter-department division of

work, did not fall within the officer's

particular functions, although he could

be asked to perform that act at any time.

[Id. at 783.] |

We agree with the Fifth Circuit in L'Hoste

that what is required under our statute, as in

Louisiana, is to show the payment involved,

"not as a guid pro guo for specific action, but

with the intent to influence the conduct of the

public servant in relation to his position,

employment, or duty [,] .. . [an] inquiry

[which] is a broader one than the inquiry pre-

sented by the West Virginia statute [in Arthur]

App. 41

and that [Maryland] designates as bribery con-

duct that may well be lawful in West Virginia."

vii. Sufficiency of the evidence

Under Rule 886 when an action has been

tried by the lower court without a jury, this

Court will review the case upon both the law

and the evidence, but the judgment of the

lower court will not be set aside on the evi-

dence unless clearly erroneous and due regard

will be given to the opportunity of the lower

court to judge the credibility of the wit-

nesses. In Pope v. State, 284 Md. 309, 396

A.2d 1054 (1979), Judge Orth said for the

Court on the matter of appellate review in a

criminal case:

The appellate court's function

"is merely to decide whether

there was sufficient evidence,

or proper inference from the

evidence, from which the trier

of fact could properly draw the

conclusion of the [accused's]

guilt, beyond a reasonable doubt.”

Brooks v. State, 277 Md. 155, 161-

162, 353 A.2d 217 (1976), and

cases therein cited. The trial

court, as the trier of facts, is

App. 42

not only the judge of the wit-

ness's credibility, but is also

the judge of the weight to be

attached to the evidence. (Id.

at 327.]

This standard is entirely consistent with

that enunciated by the Supreme Court later

in the same year in Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).

There was ample evidence to sustain each

and every finding of fact made by the trial

judge. He was correct in his statement that

"each specific incident or detail, in itself,

au be considered separately. All inci-

‘dents or details, considered cumulatively, are

what matter.”

In each instance here we have a developer

aggrieved by the sewer moratorium who sought

help from Spector who had not represented him

previously. In each instance the record dis-

closes virtually nothing done by Spector on

behalf of his clients. Money was paid to

Spector in each instance promptly after the

developers represented by him were successful

App. 43

before the Board of Review. In each instance

the fee was then very promptly shared by

Spector with Wyatt and he in turn shared the

€

fee with Noren. The record shows no work of

a legal nature done by them on behalf of the

clients. The developers had been unsuccessful

until they sought help from Spector. There is

no rational explanation for the series of

events which here took place other than that

the sums in question were paid by Spector and

Wyatt to Noren to influence him in the perfor-

mance of his duties as an Assistant Attorney

General of Maryland and that the money was re-

ceived by Noren with the same intent. All of

the circumstances here clearly permit the

inference of a corrupt intent. We find suf- e

ficient evidence to sustain the convictions.

viii. Claimed lack of compliance

Maryland Rule 735 d states:

If the defendant elects to be

tried by the court, the trial of the

case on its merits before the court @

may not proceed until the court de-

termines, after inquiry of the defen-

dant on the record, that the defendant

has made his election for a court trial

App. 44 e

with full knowledge of his right to a

jury trial and that he has knowingly

and voluntarily waived the right. If

the court determines otherwise, it

shall give the defendant another elec-

tion pursuant to this Rule.

Relying upon Countess v. State, 286 Md.

444, 408 A.2d 1302 (1979), the defendants

contend, "The record in the case sub judice

does not disclose an effective compliance with

the requirement." They point to the proceed-

ings before the trial judge on the morning of

trial (June 5) and say that this “waiver was

per se defective because it failed to explain

the composition of a jury, as well as the pro-

per standard of proof that a unanimous jury

must find in order to convict." On that morn-

ing the trial judge started out by saying to

Judge Spector that he wished him "again to re-

affirm his understanding" of his rights.

(Emphasis added.) A similar question was pro-

pounded to each of the other defendants. It

is acknowledged that a full waiver proceeding

was held before the same judge on May 29 but

it is contended this “waiver was premature."

App. 45

The proceeding on May 29 was full and com-

plete in every regard. In fact, Spector, when

he was advised, said, "I have given that advice e

many times myself, Your Honor," referring to

his own duties as a judge of the District Court

of Maryland. @

There is nothing in Countess or in the

rule which requires that the inquiry after an

election of a court trial be on the very day

trial begins. Hence, we find this contention .

to be without merit.

ix. Conclusion e

It follows from what we have said that

the judgments against the appellants are to

be affirmed. e

JUDGMENTS AFFIRMED;

APPELLANTS TO PAY

THE COSTS.

App. 46

U.S. CONST. amend. V.

No person shall be held to answer for

a capital, or otherwise infamous crime, un-

less on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia.

when in actual service in time of War or

public danger; nor shall any person be sub-

ject for the same offense to be twice put

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a wit-

ness against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just com-

pensation.

U.S. CONST. amend. VI.

In all criminal prosecutions, the accused

@.all enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been pre-

App. 47

viously ascertained by law, and to be informed

of the nature and cause of the accusation; to

be confronted with the witnesses against him;

to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assistance

of counsel for his defense.

U.S. CONST. amend. XIV., §l.

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall ab-

ridge the privileges or immunities of citizens

of the United States; nor shall any State de-

prive any person of life, liberty, or property,

without due process of law; nor deny to any per-

son within its jurisdiction the equal protec-

tion of the laws. a

MD. DECLARATION OF RIGHTS, art. 21.

That in all criminal prosecutions, every a

man hath a right to be informed of the accusa-

tion against him; to have a copy of the Indict-

App. 48

ment, or charge, in due time (if required) to

prepare for his defense; to be allowed counsel;

to be confronted with the witnesses against

him; to have process for his witnesses; to

examine the witnesses for and against him on

oath; and to speedy trial by an impartial

jury, without whose unanimous consent he

ought not to be found guilty.

18 U.S.C.A. §201 (West 1969 and

Supp. 1980).

(a) For the purpose of this section:

") "public official" means Member of

Congress, the Delegate from the District of

Columbia, or Resident Commissioner, either

® before or after he has qualified, or an offi-

cer or employee or person acting for or on

behalf of the United States, including the

« District of Columbia, in any official func-

tion, under or by authority of any such de-

partment, agency, or branch of Government or

a juror; and

"person who has been selected to

be a public official" means any person who

App. 49

has been nominated or appointed; and

"official act" means any decision

or action on any question, matter, cause,

suit, proceeding or controversy, which may

at any time be pending, or which may by law

be brought before any public official, in

his official capacity, or in his place of

trust or profit.

(b) Whoever, directly or indirectly,

corruptly gives, offers or promises any-

thing of value to any public official or

person who has been selected to be a pub-

lic official, or offers or promises any

public official or any person who has

been selected to be a public official to

give anything of value to any other per-

son or entity, with intent --

(1) to influence any official

act; or

(2) to influence such public

official or person who has been selected

to be a public official to commit or aid

in committing, or collude in, or allow,

any fraud, or make opportunity for

the commission of any fraud, on the

United States; or

(3) being induced to do or omit

to do any act in violation of his offi-

cial duty; or

(ad) Whoever, directly or indirectly,

corruptly gives, offers, or promises anything

of value to any person, or offers or promises

such person to give anything of value to any

other person or entity, with intent to influ-

ence the testimony under oath or affirmation

of such first-mentioned person as a witness

upon a trial, hearing, or other proceeding,

before any court, any committee or either

House or both Houses of Congress, or any

agency, commission or officer authorized by

the laws of the United States to hear evi-

dence or take testimony, or with intent to

influence such person to absent himself

therefrom; or

(e) Whoever, directly or indirectly,

corruptly asks, demands, exacts, solicits,

App. 51

seeks, accepts, receives, or agrees to re-

ceive anything of value for himself or for

any other person or entity in return for

being influenced in his testimony under oath

or affirmation as a witness upon any such

trial, hearing, or other proceeding, or in

return for absenting himself therefrom --

Shall be fined not more than $20,000

or three times the monetary equivalent of

the thing of value, whichever is greater,

or imprisoned for not more than fifteen

years, or both, and may be disqualified

from holding any office of honor, trust,

or profit under the United States.

(f) Whoever, otherwise than as pro-

vided by law for the proper discharge of

official duty, directly or indirectly

gives, offers, or promises anything of

value to any public official, former

public official, or person selected to

be a public official, for or because of

any official act performed or to be per- e

formed by such public official, former

App. 52 e

public official, or person selected to be

a public official, or

(g) Whoever, being a public official,

former public official, or person selected

to be a public official, otherwise than as

provided by law for the proper discharge

of official duty, directly or indirectly

asks, demands, exacts, solicits, seeks,

accepts, receives, or agrees to receive

anything of value for himself for or be-

cause of any official act performed or to

be performed by him; or

(h) Whoever, directly or indirectly,

gives, offers, or promises anything of

value to any person, for or because of the

testimony under oath or affirmation given

or to be given by such person as a witness

upon a trial, hearing, or other proceeding,

before any court, any committee of either

‘House or both Houses of Congress, or any

agency, commission, or officer authorized

by the laws of the United States to hear

evidence or take testimony, or for or be-

cause of his absence therefrom; or

App. 53

(i) Whoever, directly or indirectly,

asks, demands, exacts, solicits, seeks,

accepts, receives, or agrees to receive

anything of value for himself for or be- ,

cause of the testimony under oath or affir-

mation given or to be given by him as a

witness upon any such trial, hearing, or ’

other proceeding, or for or because of his

absence therefrom --

Shall be fined not more than $10,000 .

or imprisoned for not more than two years,

or both. |

(j) Subsections (d), (e), (h), and (i)

shall not be construed to prohibit the payment

or receipt of witness fees provided by law,

or the payment, by the party upon whose be-

half a witness is called and receipt by a

witness, of the reasonable cost of travel

and subsistence incurred and the reasonable

value of time lost in attendance at any

such trial, hearing, or proceeding, or in

the case of expert witnesses, involving a

App. 54 ®

technical or professional opinion, a reason-

able fee for time spent in the preparation

of such opinion, and in appearing and tes-

tifying.

(k) The offenses and penalties pre-

scribed in this section are separate from

and in addition to those prescribed in sec-

tion 1503, 1504, and 1505 of this title.

MD. CODE ANN. art. 27 §23 (Supp. 1980).

If any person shall bribe or attempt

to bribe any executive officer of the State

of Maryland, any judge, or other judicial

officer of this State, any member of offi-

cer of the General Assembly of Maryland,

any officer or employee of the State, or

of any bi-county or multi-county agency in

the State, or of any county, municipality

or other political subdivision of the State,

including members of the police force of

Baltimore City and the State Police or any

member or officer of any municipal corpora-

tion of this State, or any executive officer

App. 55

of such corporation, in order to influence

any such officer or person in the performance

of any of his official duties; and if the

Governor or other executive officer of this

State, any judge, or other judicial officer

of this State, any member of the General

Assembly of Maryland or officer thereof, any

officer or any employee of the State, or of

any bi-county or multi-county agency in the

State, or of any county, municipality or

other political subdivision of the State,

including members of the police force of

Baltimore City and the State Police or any

member or officer of any municipal corpora-

tion, or mayor or other executive officer

thereof in this State shall demand or re-

ceive any bribe, fee, reward or testimonial

for the purpose of influencing him in the

performance of his official duties, or for e

neglecting or failing to perform the same,

every such person so bribing or attempting

to bribe any such officers or person, and ®

every such person so demanding or receiving

App. 56

any bribe, fee, reward, or testimonial shall

be deemed guilty of bribery, and on being

convicted thereof shall be fined not less

than $100 nor more than $5,000, or, in the

discretion of the court, shall be sentenced

to be imprisoned in the penitentiary of this

State for not less than two nor more than 12

years, or both fined and imprisoned, and

shall also be forever disfranchised and dis-

qualified from holding any office of trust or

profit in this State; and any person so brib-

ing or attempting to bribe or so demanding

or receiving a bribe shall be a competent

witness, and compellable to testify against

any person or persons who may have committed

nay of the aforesaid offenses; provided, that

any person so compelled to testify in. behalf

of the State in any such case shall be exempt

from prosecution, trial and punishment for

any such crime of which such person so tes-

tifying may have been guilty or a participant

therein, and about which he was so compelled

to testify.

App. 57

W. VA. CODE §61-5A-3 (1977).

A person is guilty of bribery under

the provisions of this section if he offers,

confers or agrees to or upon another, or

solicits, accepts or agrees to accept from

another, directly or indirectly:

(1) Any pecuniary benefit as

consideration for the recipient's

official action as a public servant

or party official; or

(2) Any benefit as considera-

tion for the recipient's official

action as a public servant in an

administrative or judicial proceed-

ing; or

(3) Any benefit as considera-

tion for a violation of a legal duty

as a public servant or party official.

A person is also guilty of bribery under ®

the provisions of this section if he agrees

to render official action as a public servant

or party or upon, or as consideration for a

App. 58

promise that a pecuniary benefit shall be

offered or conferred to or upon, another per-

son or a party official or a political party.

(1970, 2nd Ex. Sess., c. 3).

28 U.S.C. §1257. STATE COURTS;

APPEAL: CERTIORARI

Final judgments or decrees rendered by

the highest court of a State in which a

decision could be had, may be reviewed by

the Supreme Court as follows:

* * * * * *

(3) By writ of certiorari, where the validi-

ty of a treaty or statute of the United States

is drawn in question or where the validity of

a State Statute is drawn in question on the

ground of its being repugnant to the Constitu-

tion, treaties or laws of the United States,

or where any title, right, privilege or

immunity is specially set up or claimed under

the Constitution, treaties or statutes of, or

commission held or authority exercised under,

the United States. June 25, 1948, c. 646,

62 Stat. 929.

App. 59

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