Acquah v. State

³⁸ HARRELL, Judge. Appellant, Sabina Evelyn Acquah (Acquah), was indicted on two criminal conspiracy counts. One count charged Acquah with conspiracy 1 to bribe state employees under Md. Ann.Code art. 27, § 22 2 (hereinafter referred to as “the bribery count”). The second count charged Acquah with conspiracy to gain illegally access to personal records by false pretenses, bribery, or theft (hereinafter referred to as “the personal record count”). 3 Acquah was acquitted by a jury sitting in the Circuit Court for Baltimore City (Hammerman, J., presiding) on the bribery count but convicted on the personal record count.

She appeals her conviction on several fronts. We shall affirm. FACTS This case evolved out of the apparently frenzied market for inclusion of Maryland’s Medicaid recipients in managed care programs, particularly health maintenance organizations 4 ³⁹ (HMO’s). Without mandatory enrollment legislation allowing access to potential client information, the private entities were often perplexed as to how to enroll Medicaid recipients without access to State-controlled listings.

The State, we presume unintentionally, created a lucrative market without providing an efficient, yet legal, means of finding members of that market. Although the State desired that private companies enroll its Medicaid recipients, it did not provide access to recipient records. The Department of Health and Mental Hygiene (DHMH) maintains the recipient information on internal forms known as HEOl’s. This potentially lucrative market, albeit one created by the State, spawned an environment that included bribery of DHMH employees to release HEOl’s as a means to obtain “leads” on possible clientele.

This use of the HEOl’s by certain HMO marketing representatives led to the Medicaid Fraud Control Unit (MFCU) investigations that, in turn, led to the indictment of Acquah. Chesapeake Health Plan (CHP) is an HMO operating in Maryland. Acquah became an employee of CHP in 1988 and, at some point thereafter, became the Medicaid Marketing Manager. During the alleged conspiracy, she had supervisory responsibility for all CHP employees marketing services to Medicaid recipients.

The issue addressed below was whether Acquah conspired to obtain illegally the HEOl’s from State employees in order to enhance the performance of the Medicaid Marketing Department at CHP. Acquah’s subordinates worked out of two offices, one in Baltimore City and another in Prince George’s County. The representatives were required to report in the morning to their assigned office, venture into the marketing thicket to enroll Medicaid recipients, and return to the office shortly before the end of the work day. Acquah managed her employees through direct contact and by addressing them at biweekly meetings. ⁴⁰ The MFCU obtained a subpoena duces tecum directed to the Custodian of Records at CHP.

On 15 March 1995, after an attempt to serve CHP’s general counsel, a MFCU investigator served the subpoena on Acquah. Among the many documents requested were HEOl’s. Officers of CHP and Acquah both testified that before service of the subpoena they had no knowledge of the existence or significance of HEOl’s. It was later demonstrated at trial that HEOl’s were single sheets of paper, maintained by DHMH, that contained personal information about individual Medicaid recipients.

The face of an HEOl does not proclaim its confidentiality and numerous witnesses at trial denied knowledge of its confidential status. CHP, and its counsel, conducted a search of the Medicaid Marketing Department’s offices and discovered HEOl’s in approximately one-third of the representatives’ cubicles. CHP followed up the search with interrogations of the representatives and supervisors. A number of these individuals were ultimately summoned by the grand jury and admitted to using HEOl’s.

Most of these persons were fired. Acquah was interrogated separately and denied knowing that HEOl’s were used at CHP. She also denied ever distributing HEOl’s. Acquah was later indicted on the two conspiracy counts that were the subject of the trial below.

The State alleged that Acquah was part of an ongoing conspiracy to obtain the HEOl’s from state employees. Apparently four representatives illegally obtained the HEOl’s, although only one admitted actually to paying State employees to obtain them. The State never alleged that Acquah personally bribed its employees or directly took part in any substantive crime. She was charged strictly as a co-conspirator.

After her indictment, CHP placed Acquah on unpaid leave. Acquah’s trial encompassed six days. The testimony received indicated that several former employees had observed use of HEOl’s at CHP. They testified that Acquah, at the biweekly meetings, instructed her staff concerning concealing “leads” in order to keep potential enrollees from discovering that the representatives had confidential information.

One ⁴¹ exchange between the prosecutor and a witness occurred as follows: Q. And do you recall in any of these meetings Sabina Acquah saying anything about HEO-1 screens? A. The only thing I ever heard her say is they [were] getting [a lot] of complaints of how marketing reps knew all this information on people, and they, you know, how did they get these informations (sic). And there was a couple of times that she said in a meeting that if you are using these things, leave them in your cars. Don’t take them in those people’s houses.

You maybe can copy them but they are never to see the papers, do something, but do not take them into people’s office (sic). Q. When Sabina Acquah said this, you used the words, these things; do you recall what words she used? A. HEO-1, leads, either/or. THE COURT: HEO-l’s or what?

A. Or leads. THE COURT: Leads. Q. At Chesapeake in the Medicaid Marketing Department what things were referred to as leads? A. HEO-l’s, a call in, if someone called in inquiring about a plan, if someone was disenrolled or lost eligibility, you know, if that is a plan they already owned, you can go back out and try to resell them the plan.

Q. Did anyone ever tell you to take the — not to take the referral from another marketing representative into someone’s house? A. Not unless they, if another marketing representative gave you a HEO-1, don’t take that in. Other witnesses testified that Acquah told them not to go into the enrollees’ homes with the leads. Other testimony indicated that Acquah told at least one marketing representative to get some of “those things going around”.

Her alleged co-conspirator testified that his request of Acquah for reimbursement for the purchase of HEOl’s was ⁴² denied. She also apparently vowed to deny knowledge of the HEOl’s if they were uncovered. Yet another representative testified that Acquah gave out HEOl’s with a gesture that indicated, at least to that representative, that Acquah knew her actions were wrong. Additionally, the record is full of testimony that demonstrates that Acquah knew of the illegal conduct occurring in her department and failed to take decisive action to stop it.

Acquah did refute these witnesses "with her own testimony and that of other witnesses. Acquah testified that legitimate “leads” came into the hands of her representatives and that these are the “things” she warned against taking into the enrollees’ homes. Acquah’s supervisor testified he believed that Acquah did not know the HEOl’s were being used in the department. ISSUES I. Did the jury’s acquittal on the bribery count dictate acquittal on the personal records count thereby requiring reversal?

II

Did the State present evidence sufficient to convict Acquah on the personal records count?

III

Did the trial court’s instructions to the jury regarding the law of conspiracy constitute reversible error?

IV

Should the trial court’s determination that the jury selection process was properly conducted be upheld? V. Did the trial judge act improperly so as to deny Acquah a fair trial? Before considering the merits of Acquah’s first argument, we note that this issue has not been preserved for appeal. When a defendant contends that a jury’s verdicts are inconsistent or improper, he or she must raise the issue at trial.

See Bell v. State, 220 Md. 75, 81 , 150 A.2d 908 (1959); Cross v. State, 36 Md.App. 502, 506 , 374 A.2d 620 (1977), rev’d on other grounds, 282 Md. 468 , 386 A.2d 757 (1978); see also ⁴³ Hawkins v. State, 87 Md.App. 195 , 589 A.2d 524 , rev’d, on other grounds, 326 Md. 270 , 604 A.2d 489 (allowing appeal absent objection at trial because the defendant was convicted on both counts and was sentenced on both). Under Md. Rule 4-323 and Md. Rule 8-131, this Court will not decide issues unless they plainly appear to have been decided below. Because appellant did not raise the issue of an inconsistent jury verdict below, we are not required to decide it now. We shall, however, decide that, even if the issue had been preserved for appeal, the jury’s verdicts were not inconsistent.

Acquah essentially argues that the jury’s acquittal on the bribery count necessarily dictates acquittal on the personal records count. First, she asserts that because she can only be tried for one conspiracy, the acquittal on the first conspiracy count precludes any subsequent conspiracy conviction. She further contends that the elements for conspiracy to bribe are also essential to the personal records count, and, therefore, the acquittal on the first count eviscerated the second. Her argument, precariously perched on artful, if not convincing, legal analysis, is easily toppled.

In both counts, the State charged Acquah with conspiracy. Conspiracy, a common law misdemeanor, is defined as a combination by two or more persons to accomplish a criminal or unlawful act or acts, or to do a lawful act by criminal or unlawful means. Mason v. State, 302 Md. 434, 444 , 488 A.2d 955 (1985); Wallach v. Board of Educ., 99 Md.App. 386, 391 , 637 A.2d 859 , cert. granted, 336 Md. 98 , 646 A.2d 1018 (1994); see also Hurwitz v. State, 200 Md. 578 , 92 A.2d 575 (1952) (characterizing conspiracy as complete without any overt act). The State properly charged Acquah with participating in a singular conspiracy.

A single agreement to engage in criminal conduct does not amount to several conspiracies because the agreement contemplated several offenses. Mason, 302 Md. at 445 , 488 A.2d 955 . Even though the underlying illegal subject matter of the conspiracy may have been two separate statutory crimes, Acquah was charged with participating in one common law conspiracy. Acquah ⁴⁴ could, therefore, only be convicted on one of the conspiracy counts.

It does not follow, however, that an acquittal on any one conspiracy count results in an acquittal on both. 5 Appellant fails to acknowledge that a single conspiracy may be charged in several counts to meet different interpretations that might be placed upon the evidence by the jury. See United States v. Maryland State Licensed Beverage Ass’n, 240 F.2d 420 (4th Cir.1957). The State charged Acquah with conspiring with another person to do some illegal act. The multiple counts allowed the jury to weigh the evidence and determine what, if any, criminal act Acquah agreed to commit.

The State acknowledged that Acquah could not be convicted on both counts. At the State’s request, the trial judge instructed the jury that it should not proceed to consider the personal record count if it found Acquah guilty of conspiracy to bribe. Both the State and the trial judge recognized that a jury might, as the jury in the instant case apparently did, reject the argument that Acquah engaged in a conspiracy contemplating bribery of state employees. The personal record count, therefore, gave the jury the option of convicting Acquah of conspiracy to otherwise illegally obtain the confidential documents.

The State charged Acquah with a single conspiracy in two different counts thereby recognizing the different interpretations that could be placed upon the evidence by the trier of fact. Doing so was entirely proper. See Ezenwa v. State, 82 Md.App. 489, 500-02 , 572 A.2d 1101 (1990) (deciding that multiple counts are not fatal to convictions, but defendant can only be convicted and sentenced on one of the ⁴⁵ counts). Aequah’s single conspiracy argument asserts that an acquittal on the bribery count inherently dictates that there was no conspiracy.

Using her flawed logic, it would follow that a conviction on either count is inconsistent with an acquittal on the other. As explained above, the verdicts were not inconsistent. Even if we were to assume that the two verdicts were inconsistent, the doctrine of inconsistent jury verdicts would mitigate against reversal. “While it is true that a finding of guilt on two inconsistent counts will be declared invalid in Maryland, ... it does not follow that a conviction on one count may not stand because of an inconsistent acquittal on another count”. Leet v. State, 203 Md. 285, 293 , 100 A.2d 789 (1953) quoted in State v. Moulden, 292 Md. 666, 681 , 441 A.2d 699 (1982).

Acquah acknowledges that we traditionally recognize the validity of inconsistent jury verdicts. She suggests, however, that the rule should not apply to the inchoate crime of conspiracy because, as previously discussed, Acquah could only be convicted of one conspiracy. We disagree and shall not create an exception to the doctrine of inconsistent jury verdicts. We see no compelling reason to stray from the doctrine as it now stands.

Acquah’s second theory turns on a double jeopardy analysis. She argues that bribery is a lesser offense included in the personal record count. Her acquittal on the lesser included offense, she contends, mandates acquittal on the greater offense. 6 She fails to recognize that, although bribery is included in the personal record count, it is not an essential element. We cannot be certain which element of ⁴⁶ conspiracy to bribe the State failed to prove. 7 Although interpreting the evidence is the province of the jury, if the crimes charged in both counts were the same, Acquah could not be convicted of one and acquitted of the other.

In judging whether crimes in different counts are the same, the court will determine whether each count contained the same elements and would require the same evidence to convict. Weinecke v. State, 188 Md. 172 , 52 A.2d 73 (1947); Smith v. State, 31 Md.App. 106 , 355 A.2d 527 (1976). If elements of the first count are entirely contained in the second count, then acquittal on the first requires acquittal on the second. In Bryant v. State, 229 Md. 531 , 185 A.2d 190 (1962), for example, the Court overturned a criminal conviction on a “second offender” statute.

The appellant was acquitted of unlawful possession of heroin but convicted of another count that included the same elements as the first plus his prior conviction for possession of drug paraphernalia. All of the elements in the first charge were essential to conviction on the second. The Bryant case differs from the circumstances facing Acquah in two regards. First, Acquah was charged with conspiracy and not the underlying substantive crimes.

Both counts, therefore, require an agreement, or meeting of the minds, but neither requires precisely the same agreement. Therefore, all of the elements of the crime for which she was acquitted are not contained in the crime for which she was convicted. Additionally, the personal record count, at least in theory, could have been proven through any one of three theories. The bribery element is not essential to conviction.

We shall explain. ⁴⁷ The first count, using the language of the bribery statute, Md. Ann.Code art. 27, § 22, amounts to a charge of conspiracy to bribe a public official. That count has essentially three elements: 1) Conspiracy to; 2) Bribe. 3) a public official. The crime charged in the personal record count is prohibited by Md. State Gov’t Code Ann. §§ 10-611 to -627. The State charged Acquah with: 1) Conspiracy to; 2) gain access to or a copy of; 3) personal records regarding Maryland Medicaid Assistance recipients; by 4) a) false pretenses, b) bribery, or c) theft.

Any one of the last three “theories” composing the fourth element of the second count, i.e. false pretenses, bribery, or theft, is sufficient to satisfy the element. Because Maryland’s definition of bribery has remained consistent, 8 we conclude that bribery, as used in Md. State Gov’t Code Ann. §§ 10-611-627 and the personal record count, contains the same elements and requires the same proof as the crime charged in the bribery count. Simply put, Acquah’s acquittal on the bribery count prevented her subsequent conviction on the personal record count based on a bribery theory. Failure to prove bribery as a whole in the first count prohibits its use as a part of the whole in the second.

See Burkett v. State, 98 ⁴⁸ Md.App. 459, 471, 633 A.2d 902 (1993), cert. denied, 334 Md. 210 , 638 A.2d 752 (1994). With a bribery theory unavailable to the State, and because it concedes that no evidence of false pretenses was ever offered at trial, the only viable theory is theft. Theft is a crime clearly defined by statute. Md. Ann.Code art. 27, § 342.

The legislature created the theft statute to consolidate, in a single statutory scheme, the various common law larceny related crimes. State v. Burroughs, 333 Md. 614 , 636 A.2d 1009 (1994). The theft statute was in existence at the time of the passage of Md. State Gov’t Code Ann. §§ 10-611-627 in which the term “theft” was employed. We must consider the entire statutory scheme in our interpretation in tune with logic and common sense.

Additionally, if the words of the statute are clear and unambiguous, our search for the meaning of its language may begin and end with its plain meaning. Long v. State, 343 Md. 662, 667 , 684 A.2d 445 (1996) (citing In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012 (1994)); State v. Montgomery, 334 Md. 20, 24 , 637 A.2d 1193 (1994); Harris v. State, 331 Md. 137, 145 , 626 A.2d 946 (1993); Mustafa v. State, 323 Md. 65, 73 , 591 A.2d 481 (1991). We shall presume the the legislature acted with knowledge of the theft statute when it enacted Md. State Gov’t Code Ann. §§ 10-611 to -627. E.g., State v. Bricker, 321 Md. 86 , 581 A.2d 9 (1990).

We conclude, therefore, that “theft”, as used in Md. State Gov’t Code Ann. §§ 10-611-627, is the same as the crime defined by the theft statute. We note that it was also necessary to charge the crimes separately for sentencing purposes. The sentence for common law conspiracy may not exceed the sentence for the underlying crime. If convicted of conspiracy to bribe, Acquah faced a $5000 fine and twelve years in jail.

The personal record count carried only a maximum punishment of a $1000 fine. Had the State charged Acquah with conspiracy to commit both crimes in one count, the trial court would not have been able to determine the appropriate sentence without invading the province of the jury. ⁴⁹ II. In reviewing a claim of insufficiency of evidence, an appellate court must not decide whether it believes the evidence at trial established guilt beyond a reasonable doubt. The appellate court is required to affirm a conviction if, “... after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979) quoted in State v. Albrecht, 336 Md. 475 , 649 A.2d 336 (1994) (emphasis in original); Oken v. State, 327 Md. 628 , 612 A.2d 258 , cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); State v. Raines, 326 Md. 582 , 606 A.2d 265 , cert. denied, 506 U.S. 945 , 113 S.Ct. 390 , 121 L.Ed.2d 299 (1992); Branch v. State, 305 Md. 177 , 502 A.2d 496 (1986).

As set forth in the discussion of Issue I, the personal record conviction is viable if the State produced sufficient evidence that Acquah: 1) Conspired to; 2) gain access to or a copy of; 3) personal records regarding Maryland Medicaid Assistance recipients; by 4) theft. Acquah does not dispute that the State offered sufficient evidence satisfying elements two and three. She contends, however, that the State failed to produce evidence of both her participation in a conspiracy and theft. Much of Acquah’s attack on the sufficiency of the evidence against her is based upon the notion that her mere association with the conspirators and knowledge of their activities was insufficient to make her a co-conspirator.

Acquah contends that her managerial control over the conspirators is not tantamount to participation in the conspiracy. She fails to observe, however, that the conviction here need not be based upon Acquah’s failure to police her subordinates, although this may also be evidence of her participation in the conspiracy. Her conviction turns ⁵⁰ instead upon the evidence of her participation in a conspiracy to obtain information by theft and her actions consistent with that conspiracy. The State was not required to show a formal agreement in order to prove conspiracy.

It is sufficient if the parties tacitly come to an understanding regarding the unlawful purpose. Quaglione v. State, 15 Md.App. 571 , 292 A.2d 785 (1972). In fact, the State was only required to present facts that would allow the jury to infer that the parties entered into an unlawful agreement. Vandegrift v. State, 82 Md.App. 617 , 573 A.2d 56 , cert. denied, 320 Md. 801 , 580 A.2d 219 (1990).

The concurrence of actions by the co-conspirators on a material point is sufficient to allow the jury to presume a concurrence of sentiment and, therefore, the existence of a conspiracy. Hill v. State, 231 Md. 458 , 190 A.2d 795 , cert. denied, 375 U.S. 861 , 84 S.Ct. 127 , 11 L.Ed.2d 88 (1963). Acquah argues that the State offered no evidence of a formal oral or writtén agreement between the conspirators. We conclude that was unnecessary.

The State proffered sufficient evidence demonstrating Acquah’s concurrence with the conspiracy by her actions and, perhaps even more detrimental to her cause, direct participation in the concealment of the continuing crime of theft. We need not, and therefore shall not, decide whether Acquah’s role as supervisor makes her per se criminally liable for the actions of her subordinates. We note, however, that such an argument is not persuasive. We cannot go so far as to require, as the State may wish us to, that supervisors be held criminally liable if they fail properly to police employees or, for that matter, take any preventive measures concerning their subordinates.

As we stated in Jones v. State, 8 Md.App. 370 , 259 A.2d 807 (1969), “mere cognizance of the commission of a crime ... does not make the person having such knowledge, a co-conspirator of the criminal.’’ Id. at 379 , 259 A.2d 807 . We are not seduced by the State’s argument that Acquah’s authority and means to discipline her subordinates, as well as her acceptance of substantial profits 9 from an ⁵¹ unlawfully increased sales volume, were sufficient for the jury to have found her a willing participant in an unlawful agreement. The State offered two federal cases in support of this argument. United States v. Misle Bus & Equip.

Co., 967 F.2d 1227 , 1236 (8th Cir.1992); United States v. Gillen, 599 F.2d 541, 547 (3d Cir.1979), cert. denied, 444 U.S. 866 , 100 S.Ct. 137 , 62 L.Ed.2d 89 (1979). These two federal antitrust cases support the notion that managerial inaction is sufficient to establish a criminal conspiracy. In federal price fixing actions, however, the underlying criminal “conduct is illegal per se ”. Gillen, 599 F.2d at 547 .

The application of a per se rule for managers of companies charged with conspiracy to commit federal price fixing crimes stems, therefore, from the nature of the underlying substantive crimes. In any event, we do not consider federal antitrust eases as very persuasive in our analysis of Maryland conspiracy law. The common law crime of conspiracy in Maryland consists of the combination of two or more persons to accomplish some unlawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.

The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design. Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988). There is no fissure in Maryland’s common law of conspiracy in which to lodge a per se managerial conspiracy theory. We find more compelling the federal case offered by Acquah that decided “a defendant’s mere association with conspirators is not enough to support a conspiracy conviction”.

United States v. Austin, 786 F.2d 986, 988 (10th Cir.1986). Certainly such a perspective is more consistent with the law of conspiracy as set forth ⁵² in Townes and Jones . The evidence produced at trial, however, demonstrated that Acquah did more than merely associate or fail to supervise properly. Before we discuss the evidence of Acquah’s participation in the conspiracy, we must review the law of theft as it applies to her circumstances.