Aud v. State

GILBERT, Chief Judge. While investigating alleged bribery and other corruption, the State Prosecutor 1 discovered facts which he believed indicated that George R. Aud, a County Commissioner of St. Mary’s County, was guilty of filing false Maryland State income tax returns. Subsequently, charges were brought against Aud in the Circuit Court for St. Mary’s County. Judge Jacob S. Levin, at a non-jury trial, convicted Aud on two counts of filing false tax returns.

Aud was sentenced to concurrent one year terms. Aggrieved at the results in the circuit court, Aud has carried his cause to Annapolis where he posits an ennead of assertions as to why the judgments should be negated. We shall discuss each of the issues put to us by Aud, adding any facts that may be necessary to a better understanding of the particular point involved. I “The State Prosecutor did not have the authority to commence this prosecution. ” Aud’s assault on the State Prosecutor’s powers to initiate a prosecution is hydra-headed.

He asserts: 1) The filing of false income tax returns is not an offense that the State Prosecutor is empowered to prosecute. 2) Since the statute requires that the local State’s Attorney has 45 days in which to consider bringing the ⁵¹² charges, commencement of the prosecution before the expiration of the 45 days vitiates the charges, irrespective of the local prosecutor’s waiver. The State Prosecutor’s initial sojourn into Aud’s activities was commenced as a result of alleged bribery. 2 During the course of that probe, the State Prosecutor “planted” an undercover State Police officer in St. Mary’s County with the apparent instruction to cultivate a friendship with Aud. The trooper, to use the vernacular, was “wired.” Certain conversations between him and Aud contained the latter’s magniloquence about income tax evasion. Those boasting statements led the State Prosecutor to write to then Governor Harry R. Hughes: “As you are aware, the State Prosecutor’s Office, in conjunction with the St. Mary’s County Grand Jury, has been investigating allegations of bribery, misconduct in office, and ethics in government violations by certain St. Mary's County elected and appointed officials.

During the course of this investigation, my office has come into possession of information which leads me to believe that certain officials in St. Mary’s County have been and are currently violating Maryland’s income tax and gambling laws. The alleged income tax evasion appears to be inextricably associated with matters which are currently under investigation by my office in St. Mary’s County. It is my opinion that this matter should be thoroughly investigated as an alleged substantive offense.” The Governor responded: “You have advised me that information has been received by your office that indicates the possibility of criminal conduct with respect to certain elected and appointed officials of St. Mary’s County. This information ⁵¹³ was discovered in the course of an ongoing investigation by your office of possible misconduct and bribery in St. Mary’s County.

In accordance with your request, and pursuant to the provisions of Article 10, Section 33B(c) of the Annotated Code of Maryland, I hereby direct you to expand the investigation previously authorized to include the allegations of criminality referred to above and more fully described in your letter.” The statute empowers the Governor to authorize the State Prosecutor to “investigate criminal activity conducted or committed ... in more than one political subdivision of the State.” Md.Ann.Code art. 10, § 33B(c). Obviously, the first question to be resolved is whether income tax fraud is committed in “more than one political subdivision of the State.” This Court in Greco v. State, 65 Md.App. 56 , 499 A.2d 209 (1986), aff'd, 307 Md. 470 , 515 A.2d 220 (1986), said that fraud is “a continuing offense.” We specifically noted in Greco that the mailing of a fraudulent Medicaid claim could be prosecuted in the place the intent was formed, the place to which the claim form was mailed, or the place to which the form was ultimately sent for payment. There is no difference in the fraudulent intent employed in Medicaid fraud and that in income tax fraud. Consequently, the Greco rationale applies.

Aud could have been prosecuted in St. Mary’s County where he formulated the intent to defraud the State, or in Charles County from which he apparently mailed the tax return to the Comptroller’s office, or in Anne Arundel County where the return was actually received by the Comptroller of the Treasury. Any one of those three geographical locations would have sufficed as a proper venue for trial. Since the fraud continued from St. Mary’s County to Charles County to Anne Arundel County, it was unmistakably multi-county in nature and manifestly within the scope of the State Prosecutor’s authority to prosecute. ⁵¹⁴ Aud, in the second prong of his initial attack on the circuit court’s judgments, contends that the State’s Attorney of St. Mary’s County could not waive all or any part of the forty-five day notice that Md. Ann. Code art. 10, § 33B(e) requires the State Prosecutor to furnish the local State’s Attorney before the State Prosecutor may commence a prosecution. The statute provides in pertinent part: "...

If the State’s Attorney within 45 days after receipt of the State Prosecutor’s findings and recommendations fails to file charges and commence prosecution in accordance with the recommendations, the State Prosecutor may prosecute those criminal offenses as set forth in his investigative report and recommendations.” The State Prosecutor wrote to the St. Mary’s County State’s Attorney under date of May 14,1986, recommending that Aud be charged with a series of offenses including “2 counts of False Income Tax Return [Md.Ann.Code] Article 27, Section 302.” The next day, May 15, 1986, the State’s Attorney replied that he authorized the State Prosecutor “to proceed ... pursuant to [Md.Ann.Code] Article 10, Section 33B(e).” On the same day the Grand Jury for St. Mary’s County returned three indictments against Aud. Those three indictments charged, respectively, the offenses of bribery, tax fraud, and perjury. Aud was acquitted of the bribery. On oral argument we were told that Aud was placed on probation before judgment insofar as the perjury charge was concerned.

The tax fraud indictment was dismissed on the ground that the State’s evidence was illegally obtained. None of those indictments is the subject of this appeal. Shortly after the trial on those three indictments, the State Prosecutor sought and obtained a new indictment of Aud on the basis of fraudulent income tax returns. It is the convictions on that indictment that are the subject of this appeal. ⁵¹⁵ The thrust of Aud’s argument is that the State Prosecutor is compelled by the statute to wait forty-five days after notification to the local State’s Attorney before commencing a criminal prosecution if the offense is one that is within the prosecutorial powers of the local prosecutor.

Aud reads § 33B(e) as establishing a minimum, fixed, inflexible time frame with which the State Prosecutor must comply irrespective of whether the local State’s Attorney waives or sanctions a lesser time period. The forty-five day waiting period was placed in the statute to afford local State’s Attorneys an opportunity to conduct the prosecution. It was, in essence, a measure that was apparently designed to prevent local prosecutors from being placed in an embarrassing or inferior position to the State Prosecutor in matters in which the local prosecutor exercised concurrent jurisdiction. Nothing in the statute proscribes the local State’s Attorney from exercising the prerogative of permitting the State Prosecutor to proceed with the matter without the necessity of waiting forty-five days.

Indeed, any number of pragmatic reasons, both economic or political, may dictate that decision. II “The Circuit Court for St. Mary’s County was not the proper venue for the indictment herein and trial thereon.” We have previously discussed the reasons why the indictment and trial were properly brought in St. Mary’s County, i.e. fraud is a continuing offense. Greco v. State, supra, is dispositive of the issue. III “There was not sufficient evidence of venue to sustain a conviction.” We think this issue is so inextricably interwoven with issue II as to be one and the same.

It is, in short, an ⁵¹⁶ “instant replay” of that issue with the same disposition, and no further discussion is necessary. IV “The court erred in denying the appellant’s motion for a protective order.” Aud asserts that he was materially prejudiced because the State Prosecutor failed to comply with Md. Rule 4-263(a). 3 He avers that the trial court erroneously refused to compel discovery of certain surreptitiously recorded conversations. The chief aim of Md. Rule 4-263 is “to assist the defendant in preparing a defense and to afford protection from surprise.” Russell v. State, 69 Md.App. 554, 564-65 , 518 A.2d 1081, 1086 (1987). When Aud filed his motion for protective order, he had already had the occasion to hear extensive testimony by the undercover trooper who had surreptitiously recorded the conversations between Aud and himself.

Moreover, prior to the hearing on the motion for a protective order, the State Prosecutor supplied Aud with copies of all recordings that had been made of the conversations between Aud and the undercover trooper. Aud obtained a transcript of the trooper’s grand jury testimony as well as the personal notes the trooper used during that testimony. Additionally, Aud was furnished with all the recorded conversations available to the State Prosecutor, irrespective of whether they were relevant or irrelevant to the tax fraud charges. Moreover, the recordations were turned over to Aud in ample time to prepare a defense.

He ⁵¹⁷ received all there was to get; there was nothing more. Hence, the State Prosecutor complied with Rule 4-263(a), and Judge Levin properly denied Aud’s motion for the protective order. V “The court erred in denying the appellant the opportunity to examine witnesses in support of the motion to dismiss. ” Prior to trial in the instant case, Aud filed a motion to dismiss the indictment. At the hearing on that motion, the judge told Aud that he had forty-five minutes in which to present evidence in support of the motion.

Aud was further advised that there would be no time limitation on his argument on the motion. Aud called two witnesses 4 and requested from them the same information that had already been presented to the court on the motion to suppress the wiretap evidence. Aud’s argument for dismissal was bottomed on the theory that the grand jury’s tax fraud indictment 5 was grounded on evidence obtained in violation of the Md. Electronic Surveillance laws. Md. Cts. and Jud.

Proc. Code Ann., § 10-401, et seq. He was unable to elicit evidence which supported his contention. In this Court, Aud, pointing to Lewis v. State, 71 Md.App. 402 , 526 A.2d 66 (1987), as authority, asseverates that the time limitation imposed by the trial judge on the presentation of evidence is a patent abuse of discretion.

We have a different view. Lewis holds that, in the absence of a sufficient factual basis, the setting of a time limit on a defendant’s cross-examination is an abuse of discretion. Judge Levin, as a result of having heard the same evidence at the hearing on ⁵¹⁸ the motion to suppress, had already accumulated a sufficient factual basis for the justifiable exercise of his discretion. Beasley v. State, 271 Md.