Basiliko v. State

Brune, C. J., delivered the opinion of the Court. Constas Gus Basiliko was convicted in the Circuit Court for Montgomery County of conspiracy to defraud the State of Maryland and certain named individuals constituting the State Roads Commission (usually referred to below, collectively, as the “State Roads Commission” or the “Commission”). He was sentenced to two years imprisonment and a fine of a thousand dollars. He appeals from the judgment and sentence.

The questions presented on this appeal are whether or not his right to a fair trial was infringed by widespread newspaper, radio and television publicity during the course of the criminal trial growing out of the institution of a civil suit against him and others and out of its settlement by one of his co-defendants in the civil suit (but not in the criminal prosecution). The appellant was one of five defendants indicted on four counts which, in brief and in substance, charged, respectively, these conspiracies: (1) to defraud the State and the State Roads Commission; (2) to obtain money from the State and the Commission by false pretenses; (3) to cheat and defraud the State and the Commission; and (4) fraudulently to affect, increase and inflate values of real estate which was in the proc ²⁵¹ ess of being acquired by the State Roads Commission, for future road improvement, to the end that the conspirators might thereby gain unlawful profits. 1 The trial began on March 5, 1956 and was concluded on March 15th. At the arraignment just before the commencement of the trial, the State confessed “not guilty” as to two of the defendants named as conspirators, and granted immunity to a third in order to obtain his testimony against the remaining defendants— Basiliko, the appellant, and one Offenberg, both of whom pleaded “not guilty” and elected a jury trial. Both were found guilty.

Basiliko was sentenced as above stated and appealed; Offenberg was sentenced only to pay a fine and has not appealed. 2 The gist of the State’s case against Basiliko and Offenberg was that they had entered into a fraudulent conspiracy with one DuPre, a former employee of the Commission, to enhance the value of land which they knew (through DuPre) was to be acquired by the State Roads Commission, that they bought such land at a comparatively low price and by fake sales through strawmen sold it at a greatly inflated value to the Commission. DuPre was the defendant to whom immunity was granted. Pie had gone back to Mexico before the trial and returned to Maryland for the trial, at which he appeared as a witness for the State. The case had attracted considerable publicity before the trial began, and it received newspaper, radio and television coverage while it was in progress.

This included coverage by Washington, D. C., newspapers and radio and television stations having an extensive circulation or coverage in Montgomery County, which includes a large area and population in the Washington suburban area. While the trial was in progress before Judges Anderson and Pawlor and a jury, the Honorable Stedman Prescott and Mrs. Prescott brought a suit in equity on March 8, 1956, against one Albert D. Misler, George Basiliko and Constas Gus Basiliko, the appellant in the present case. Very briefly stated, the ²⁵² bill of complaint alleged: that the plaintiffs had owned a tract of about 24 acres of land in a sub-division near Rockville known as the “Wheel of Fortune”, that Constas Gus Basiliko had worked out a scheme with DuPre under which use was to be made of advance information available to DuPre as an official of the State Roads Commission relating to the relocation of the Washington National Pike (U. S. Route 240) and Basiliko was to buy up properties along the new route in order to sell them at prices in excess of their real value to the State Roads Commission, thereby unjustly enriching Basiliko and DuPre; that using such knowledge and acting through Basiliko’s brother, George Basiliko, a Washington real estate man, and through straw parties, Constas Gus Basiliko and/or George Basiliko acquired the plaintiffs’ 24 acres at a price of $600 an acre, which was alleged to be “a fraction of its then real value”, title being held in the name of Misler, a straw man; and that the plaintiffs would not have sold their land at the price stated if they had been in possession of the information corruptly furnished to the Basililcos by DuPre. Some of these allegations were based upon personal knowledge; most of them were made on information and belief.

This is by no means a complete summary of the allegations of the bill. Some of them are more fully stated in the newspaper articles mentioned below. The bill prayed for a rescission of the sale and reconveyance of the land upon refund of the purchase price, interest, taxes, etc. (with proper adjustment on account of a loan secured by a deed of trust executed by Misler), and for temporary and permanent restraining orders against transfer of the property to others. A temporary restraining order signed by Judge Anderson was issued and was served on Constas Gus Basiliko, together with a subpoena to answer the bill, following the adjournment of court apparently on the afternoon of March 8th.

(There appears to be some confusion of dates as between March 8th and 9th.) At the time of Basiliko’s trial, the Honorable Stedman Prescott (now a Judge of this Court) was the Chief Judge of the Sixth Judicial Circuit of Maryland. Montgomery County is a part of that Circuit and Judge Prescott usually sat at ²⁵³ Rockville, which is the county seat of Montgomery County. Just why this civil suit was brought during the pendency of the criminal trial is not directly stated in the record, but it appears from newspaper articles contained in the record that Judge Prescott wished to obtain the deposition of DuPre, who was in Maryland at the time of Basiliko’s trial and would presumably return to Mexico at the conclusion thereof. It may have been thought that it would be desirable to proceed under Rule 1, and not practicable to proceed under Rule 2, of our former General Rules of Practice and Procedure, Part Two, I, Depositions (now included in Rules 401 and 402, respectively, of the Maryland Rules).

Rule 1 permitted the taking of a deposition at any time after jurisdiction had been obtained over any defendant; Rule 2 permitted the taking of a deposition prior to a suit being commenced, but involved possible delay while notice by publication was being given to nonresident prospective defendants. Both George Basiliko and Misler were shown by the bill to be non-residents of Maryland. Constas Gus Basiliko was said to be a resident of Maryland. It is evident from the record that Judge Prescott (and the Clerk of the Circuit Court, also) endeavored to avoid any publicity being given to the equity suit.

These efforts were, however, not successful, and the suit received extensive publicity in three Washington newspapers, each of which had a large circulation in Montgomery County, and through radio and television broadcasts reaching the County. The first newspaper article in the record was published in The Washington Daily News of Friday, March 9, 1956, from which we quote the following: “JUDGE SAYS HE WAS GYPPED BY MD. ROAD DEAD DEFENDANT The ‘Wheel of Fortune’ JUDGE SUES ROAD CASE DEFENDANT Montgomery County Circuit Court Judge Stedman Prescott today has filed suit charging that Constas (Gus) Basiliko, one of the defendants in the Maryland Roads Commission conspiracy trial, gypped him ²⁵⁴ in a land sale involving 24 acres in the ‘Wheel of Fortune’ subdivision. The Judge charged that Mr. Basiliko and others knew that the Roads Commission wanted the land for a clover leaf — which he said he didn’t know — and bought it from him for a ‘fraction’ of its value as a road site.

Mr. Basiliko and Max Offenberg, both Washington businessmen, are on trial in another court inRockville, on charges that they conspired to jack up prices on land sold to the state for highway building. WIFE SUES, TOO Judge Prescott and his wife filed the suit as private citizens against Mr. Basiliko, his brother George, a Washington real estate dealer, and Albert D. Misler, of 1336 Missouri av nw. The suit asked the Circuit Court to break the contract, to restrain the Basiliko group from selling the land if it has not already done so and to order any profits turned over to him if it has been sold. Judge Prescott issued a subpoena ordering Mr. Basiliko to appear in Circuit Court to answer the suit.

He didn’t say what judge would handle the case. TO CATE DU PRE The Judge also said he intends to call Ben DuPre, missing co-defendant in the roads conspiracy case, who turned up yesterday as a surprise prosecution witness, as a witness in his own case. His suit charges that Mr. DuPre and Constas Basiliko ‘corruptly agreed, planned and schemed to-unjustly enrich themselves by buying properties at less than the real value thereof from persons who had no knowledge’ of the highway route. He said the sale price of the property near Rock-ville, was $600 an acre.

The suit said the Judge believes that a transaction was recorded in the land office so as to make it appear the purchase price was different. ²⁵⁵ The suit said this was part of an alleged scheme ‘to wrongfully acquire an excessive settlement from the State Roads Commission’. NEGOTIATIONS The alleged fictitious price ‘was to assist Ben DuPre in justifying the evaluations to be recommended by him in the negotiations’ between the Roads Commission and the defendants, the suit said. It said the Judge believes both of the Basilikos ‘had full information concerning the wrongful information furnished by the said DuPre and full knowledge of the illegal plans and schemes.’ Circuit Court Clerk Clayton W. Watkins refused to let The News see the original copy of the suit filed with his office. When a reporter asked why, Mr. Watkins said: ‘Just because you can’t.’ Mr. DuPre’s appearance at the roads trial yesterday threw the court room into high excitement.

He was fired from his Roads Commission job last July and reportedly went to his native Mexico before he was named in two Montgomery County indictments in November and one in Prince Georges County in December. Until he walked in the courtroom there had been no public knowledge that he had been contacted by state officials since then. He testified that Mr. Basiliko had come to Mexico City to talk to him — November. T asked him how the roads case was coming along.

He replied that everything was fine and there was nothing to fear as long as I remained in Mexico,’ he said. He testified he got the following payments from Mr. Basiliko for his part in getting premium prices from the SRC for land owned by Mr. Offenberg:” Here followed a list of five transactions involving amounts ranging from $500 to $3,000 and aggregating $8,000. The Washington Post and Times Herald and The Evening Star, of Washington, both carried articles on the same subject ²⁵⁶ on March 10, 1956. In an effort to avoid prolonging this opinion unnecessarily, we shall quote from them only briefly.

The Post and Times Herald stated in part: “Withheld the Pacts, He Says JUDGE PRESCOTT CHARGES FRAUD IN ROAD SITE DEAL Montgomery County Circuit Court Judge Stedman Prescott, who sold property in Rockville’s ‘Wheel of Fortune’ subdivision to two defendants in the Maryland roads fraud case, yesterday filed suit claiming the whole game was fixed. The jurist charged that ‘straw’ agents for Constas and George Basiliko controlled the spin of the wheel by buying land from him while knowing the State Roads Commission wanted it for a clover leaf intersection. Prescott said he didn’t know that was part of the game. He charged the agents bought a 24-acre tract along the right of way for the Washington National Pike from him for $600 an acre on Jan. 1, 1953.

The judge claimed the price was a ‘fraction’ of its value as a roads site. Also named as a participant in the game is Albert D. Misler of 1336 Missouri Ave., N. W. Prescott said the Basiliko brothers set up the game through straw parties after getting ‘wrongful’ information from former State Roads Commission official Ben Du Pre on highway relocation plans. * * * Du Pre testified at length this week on his role in tipping off the Basilikos on future road plans of the Commission in Montgomery County. Prescott said he will take a deposition from Du Pre about the land deal Thursday. * * * One week after he sold the tract, Prescott’s suit alleged, Alexander transferred it to Misler. A deed in the second transaction bore $21.45 in transfer ²⁵⁷ stamps, according to the suit, indicated a sales price of $19,500.

Prescott said the stamps were used to build up ‘a fictitious value’ through which the defendants could ‘wrongfully acquire an excessive settlement from the State Roads Commission.’ * * *” Another edition of the same paper for the same day carried the article with the headlines: “Judge Claims Eand Swindle.” The Evening Star article included the following: “PRESCOTT SUES IN ROAD SCANDAL SAYS HE SOLD LAND AT FRACTION OF VALUE Chief Judge Stedman Prescott of Montgomery County Circuit Court has alleged that he himself had been victimized by two men now under indictment on charges of conspiracy to defraud the State Roads Commission in the sale of highway rights-of-way. Judge Prescott made the allegation in a civil suit to recover land he sold them three years ago. He filed the suit Thursday in Montgomery County Circuit Court at Rockville along with his wife as private citizens. The suit names as defendants George and Constas (Gus) Basiliko, Washington area real estate men, and Albert D. Misler of 1336 Missouri avenue N. W. FIGHTING EXTRADITION Constas Basiliko and Max Oifenberg are now on trial in Montgomery County Circuit Court on charges that they conspired to jack up prices on land sold to Maryland for highway building.

George Basiliko has been indicted on a similar charge but his trial is pending because he is fighting extradition from the District of Columbia. Judge Prescott — who is not hearing the current trial — charged that the three defendants purchased a 24-acre tract from him at a ‘fraction’ of its worth, knowing that the State Roads Commission wanted ²⁵⁸ the land for a cloverleaf for the new Washington National pike. * * * The suit alleges that the defendants, through association with Ben Du Pre, former right-of-way engineer for the roads commission, learned that the State was going to need the Prescott tract for the pike, also known as relocated Route 240. CHARGES DETAILED The suit also alleges that the defendants and Du Pre ‘corruptly agreed, planned and schemed to unjustly enrich themselves by purchasing properties at less than their real value from persons who had no knowledge of the proposed relocation (of Route -240) and by disposing of said properties to the State Road Commission * * * at prices in excess of the real value thereof.’ * * * In the conveyance to Misler, excessive tax stamps were placed on the deed, the suit alleges, in order to ‘build a fictitious value’ on the tract and ‘wrongfully obtain excessive settlement with the State Roads Commission.’ * * * Judge Prescott said Du Pre has been ordered to give a deposition on Thursday. The defendants have until May '3 to answer the suit.” All of these articles appeared rather conspicuously in their respective papers.

The Associated Press put out a news item which went to its subscribers and was used in radio and television broadcasts from Washington. It began with the statement: “The Chief Judge of the Montgomery County Circuit Court has filed suit against two men under indictment on charges of conspiracy to defraud the State Roads Commission.” In very brief form it then gave