Cicoria v. State

ALPERT, Judge. We are called upon to decide, inter alia, whether an office holder and candidate for political office can be convicted of stealing from “his" campaign committee’s funds. Appellant, Anthony Cicoria, appeals convictions on the following counts: 1 count I was for theft of more than $300.00 from Citizens for Cicoria, 2 count II was for conspiring with his wife, Catherine Cicoria, to commit felony theft, and three counts were for tax evasion. ⁴⁰⁶ All the charges stemmed from Cicoria’s election campaign and tenure in office as Councilman for the Second District, Prince George’s County, Maryland. In short, the State alleged that Mr. and Mrs. Cicoria improperly used campaign funds for personal benefits and deposited those funds in a joint account.

Those funds totalled $64,324.50. The State asserted that the Cicorias employed several schemes to steal money from Citizens for Cicoria. For example: 1) In one plot, according to the State Prosecutor, Citizens for Cicoria reimbursed Mr. Cicoria for a $2300 loan — a loan that the committee never received. In actuality, $2300 worth of contributions were not reported as discrete contributions with specific donors.

Instead, the ledger listed Mr. Cicoria as giving the committee a check (loan) for $2300. 2) Mr. and Mrs. Cicoria, along with Mr. Cicoria’s mother, purchased a unit (titled in their names) at the Prince George’s Plaza Professional Park in December of 1986. Citizens for Cicoria paid $30,112.49 towards the unit’s purchase price because Mr. Cicoria used the office as his headquarters. Yet, surprisingly, the Cicorias deducted the interest payments from their personal income taxes. 3) Using a false expense scheme, checks for payment to CN printing were actually made out to Catherine Cicoria. 4) Campaign contributions were deposited directly into the Cicorias’ joint bank account. The statutory procedure requires the treasurer of the committee to deposit funds in the committee bank account and then disburse checks for expenditures.

In addition to those theft schemes, the State contended that the Cicorias violated State tax laws because they did not report those “extra funds” on their tax returns for 1986-88. THE PROCEEDINGS BELOW On November 21, 1989, a Grand Jury of the Circuit Court for Prince George’s County, Maryland charged appellant with four counts of theft, one count of conspiracy to commit ⁴⁰⁷ theft, two counts of perjury, one count of failure to complete a campaign report, and three counts of tax evasion. 3 Judge Bowling of the Circuit Court for Charles County was assigned to the case because Mr. Cicoria was a sitting member of the Prince George’s County Council. Cicoria filed a Motion to Dismiss the charges against him. The circuit court, on February 16, 1990, dismissed the four theft counts and the one conspiracy count on the ground that the State Prosecutor exceeded his statutory authority in presenting the case to the Grand Jury. 4 In addition, the ⁴⁰⁸ court dismissed the penury counts and the failure to file a complete campaign report charge. 5 The State nol prossed the remaining charges, thereby ending the first prosecution.

Subsequently, on March 19, 1990, the Grand Jury of the Circuit Court for Prince George’s County returned a second indictment against Mr. and Mrs. Cicoria. The indictment included one count of felony theft, one count of conspiracy to commit felony theft, two counts of making false statements, 6 and three counts of tax evasion. Cicoria made a Motion to Dismiss the remaining counts of the indictment, Motion for Appropriate Relief, 7 and a Motion to Recuse ⁴⁰⁹ Judge Nalley of the Circuit Court for Charles County. At a hearing on September 5, 1990, the court denied all of Cicoria’s motions.

The court granted Cicoria a one week continuance because Mrs. Cicoria, his co-defendant, fled the jurisdiction and did not appear for trial on the scheduled date. The trial was mostly a “paper affair.” Witnesses testified about bank accounts, committee ledgers, handwriting analysis, and so on. At the conclusion of the State’s case, and again at the conclusion of all the evidence, Cicoria moved for Judgment of Acquittal, which motions the trial court denied. Specifically, Cicoria requested that the court strike all exhibits and testimony concerning the alleged joint bank account held by Cicoria and his wife.

After the twelve day trial, the jury convicted Cicoria of all charges. On December 12, 1990, Judge Nalley sentenced Cicoria to concurrent sentences of ten years with all but five years suspended and five years of probation. The court also denied Cicoria’s request for bond pending appeal. Cicoria appeals to this court, raising the following issues: I. Does the theft statute apply to election law violations?

Specifically, do Count One theft and Count Two conspiracy to commit theft properly charge offenses which would apply to candidate Cicoria?

II

Did the State prosecutor have the statutory authority to bring the charges in this case?

III

Did the court err by not dismissing Counts One and Two because those counts had been previously dismissed on the merits in a prior proceeding?

IV

Did the court erroneously admit evidence concerning a purported joint bank account when the State did not sufficiently prove that it was a joint bank account? V. Did the State prove a willful violation of the State Income Tax Laws despite Cicoria’s good faith defense': VI. Did the court err by not recusing itself at the trial of this case? ⁴¹⁰ I. Does the theft statute apply to election law violations? Specifically, do Count One theft and Count Two conspiracy to commit theft properly charge offenses which would apply to candidate Cicoria?

The Grand Jury indicted Cicoria for theft from Citizens for Cicoria — his election campaign committee. He argues that: (1) the State cannot convict him for stealing contributions that were for his personal use — he cannot steal from himself; (2) the Election Code does not establish a legal “owner” of funds as found in article 27, § 340(g); (3) the Election Code regulatory scheme precludes the State from prosecuting him under other statutes or common law for election related offenses; and (4) assuming the Election Code does create an owner of the campaign contributions, that owner is the treasurer 8 of Citizens for Cicoria, not the entity Citizens for Cicoria. Cicoria appears to rely on Williams v. State, 302 Md. 787 , 490 A.2d 1277 (1985), for the proposition that “[i]t is fundamental that a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute.” Id. at 791 , 490 A.2d 1277 . To understand better Cicoria’s contentions, we examine article 27, § 342(a), (b) (Maryland’s theft statute).

(a) Obtaining or exerting unauthorized control. — A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and: (1) Has the purpose of depriving the owner of the property; or ⁴¹¹ (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or (3) Uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. (b) Obtaining control by deception. — A person commits the offense of theft when he willfully or knowingly uses deception to obtain and does obtain control over property of the owner; and (1) Has the purpose of depriving the owner of the property; or (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or (3) Uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property. Cicoria does not maintain that he did not take monies from his campaign committee, rather, he argues that Citizens for Cicoria did not own the money in its account (or contributions intended to go into its account). Therefore, to simplify the discussion, we consider who “owned” the funds at issue. 9 ⁴¹² A. Section 340(g) defines the word owner. “Owner ” means a person, other than the offender, who has possession of or any other interest in the property involved, even though that interest or possession is unlawful, and without whose consent the offender has no authority to exert control over property.

We also look to various sections of the Fair Election Practices Act for help in clarifying the issue. Md.Ann. Code art. 33, §§ 1-1-32-6 (1986 repl. vol. & supp. 1989). First, each candidate 10 for a state public office must have either a treasurer 11 or an authorized candidate campaign ⁴¹³ committee. 12 Id. § 26-8. Section 26-8 states that each candidate for nomination for, or election to, public or party office, upon or before, and as a condition precedent to qualifying as [a] candidate, shall appoint one campaign treasurer and shall file the name and address of the treasurer with the board or with the State Administrative Board of Election Laws as provided in subsection (c) of this section A candidate for whom an authorized candidate campaign committee has been established is exempt from the campaign treasurer requirement of subparagraph (i) of this subsection.

In the present case, Cicoria’;; campaign committee was Citizens for Cicoria. Second, the campaign committee should have a chairperson, and a treasurer who is not the candidate. Id. §§ 26-3(c), -4(a). [B]ut a candidate for a public or party office or nomination to public or party office may not designate himself as his own treasurer, or subtreasurer. Id. § 26-3(c).

Every central committee, partisan organization, or political committee, ... except political clubs, shall appoint and constantly maintain a chairman and a treasurer. Id. § 26-4(a). Third, campaign funds must first go through the treasurer’s hands. ⁴¹⁴ “Contributions” means the gift, transfer or promise of gift or transfer of money or other thing of value to any candidate, or his representative, or a representative of any political party or partisan organization to promote or assist in the promotion of the success or defeat of any candidate, political party, principle or proposition submitted to a vote at any election. Id. § l-l(a)(5). “Expenditure” means any gift, transfer, disbursement or promise of money or valuable thing by any candidate, treasurer, or other agent of such candidate, political party or partisan organization to promote or assist in the promotion of the success or defeat of any candidate, political party, principle or proposition submitted to a vote at any election.

Id. § l-l(a)(7). Contributions and expenditures to pass through treasurer. — All contributions, money or other valuable things collected, received or disbursed by any candidate or committee for any purpose, shall be paid over to and made to pass through the hands of the treasurer and, except as provided in § 26-5(c) 13 of this article, shall be disbursed by him. It is unlawful for any candidate or any member or members of a committee, or for any member or members of a political committee, to make any expenditure, to disburse or expend money or any other valuable things, for any purposes until the money or other valuable things so disbursed or expended has passed through the hands of the treasurer. Id. § 26-6(a).

Fourth, even contributions made by the candidate or his spouse “must pass through the hands of the candidate’s treasurer____” Id. § 26-8(a). Contributions and expenses. — The contributions of a candidate or his spouse to the candidate’s own campaign ⁴¹⁵ are not subject to the limitations of § 26-9(b), 14 but must pass through the hands of the candidate’s treasurer and be reported as required in other provisions of this subtitle. Personal expenses of the candidate for filing fees, telegrams, telephoning, travel, and board, shall not be considered contributions if paid for by the candidate or his spouse. Id.

Fifth, the treasurer must keep the funds in a campaign depository. Id. § 26-5(b). Each candidate, political committee or central committee shall designate a campaign depository or depositories and all funds and contributions in furtherance of a candidacy, political committee or central committee shall, after receipt, be deposited by the treasurer or subtreasurer in the designated campaign depository in an account properly identifying the name of and the existence of the political candidacy, political committee or central committee. Except as provided in subsection (c), 15 a candidate, campaign treasurer or subtreasurer may not pay any expense on behalf of a candidate, directly or indirectly, and a political committee or central committee, including political clubs, may not pay any expense of such organization except by check from the designated depository.

Id. § 26-6(b). Sixth, the candidate and his treasurer “shall file the report or statement of contributions and expenditures” as required by the Election Code. Id. § 26-11 (Supp.1989). Seventh, and lastly, § 26-7(d) dictates that surplus funds do not return to the candidate.

(d) Disposition of surplus funds. — Prior to the time of filing the final report required by § 26-11 of this article, any surplus funds remaining after payment of all cam ⁴¹⁶ paign expenditures shall be (1) returned, pro rata, to the contributors by the treasurer; or (2) paid to the State central committee of the party of which the candidate is a member or for which the political committee is acting; or (3) paid to a central committee of the party of which the candidate is a member or for which the political committee is acting so long as the central committee is located in a county in which the candidate resides or seeks to represent; or (4) paid to the local board of education or to a recognized nonprofit organization providing services or funds for the benefit of pupils or teachers; or (5) paid to a charitable organization registered pursuant to § 3-202 of Article 41 or to a charitable organization exempt from such registration pursuant to Article 41. Reading these sections together, we come to several conclusions. Regarding statutory interpretation, the Court of Appeals notes that “[r]esultant conclusions are to be reasonable, logical and consistent with common sense.” State v. Bricker, 321 Md. 86, 92 , 581 A.2d 9 (1990). Cicoria was not the owner of the campaign funds in the Citizens for Cicoria bank account.

Almost all campaign funds had to go through the treasurer of Citizens for Cicoria first. 16 Even Cicoria’s personal monies, once he designated them for campaign purposes, had to flow through proper channels, be spent appropriately, and be accounted for. Moreover, upon the dissolution of Citizens for Cicoria, the remaining funds do not revert to Cicoria — even personal monies that he put into the campaign fund. . Second, the treasurer was not the owner of the funds, but their channeling agent. The treasurer was the steward for Citizens for Cicoria.

The Election Code requires that he deposit campaign monies in a special account — Citizens for Cicoria’s account. Furthermore, the treasurer could only spend the money in Citizens for Cicoria’s bank account in a way that would “promote or assist in the promotion of the success or defeat of” Cicoria’s candidacy. Lastly, at trial, the State ⁴¹⁷ presented evidence to support its position that Citizens for Cicoria owned the monies at issue in this lawsuit. Ms. Babinec, Director of Candidacy and Campaign Finance, State Administrative Board of Election Laws, testified about the ownership of campaign funds.

Q [Mr. Nevin for the State] When a continuing committee receives contributions, whose money is it? A [Ms. Babinec] The committee’s, the entity’s. Q Does the money personally belong to a candidate, treasurer or chairman? A No. Q Can a candidate, treasurer or chairman do anything they want with the money?

A No. Their activity is limited to campaign expenses. Thus, all these factors point to Citizens for Cicoria as the entity which had “possession of or any other interest in the property involved____” Md.Ann.Code, art. 27, § 340(g) (1987 repl. vol.). Accordingly, we reject appellant’s theory that he cannot steal from himself. There is a dearth of authority on the issue of theft by a candidate from his campaign funds.

United States v. Pisani, 773 F.2d 397 (2d Cir.1985), is the only case we could find that bears even the slightest factual similarity to the case at bar. In Pisani , the federal government charged Pisani, a New York State Senator, with tax evasion, mail fraud, and filing false tax returns. Some of the mail fraud charges dealt with Pisani converting monies from his election campaign fund to his personal use. On appeal, Pisani argued that “his use of campaign funds for personal purposes was not unlawful____” Id. at 407 .

On page 407 of the opinion, the court laid out that particular issue. At the heart of this issue lies the question of whether New York law required Pisani to use moneys [sic] contributed to his campaign fund solely for campaign purposes, and prohibited him from putting them to personal use. The government contends that applicable New York law did not prohibit personal use of campaign funds, and ⁴¹⁸ that Pisani’s conceded use of some of them for personal purposes constituted embezzlement and conversion. Pisani contends, and we agree, that at the time of the events in question, nothing in New York law prohibited a candidate from using campaign funds for personal purposes.

Pisani used campaign funds for personal family and personal business expenses. Id. at 408 . His campaign disclosure statements did not accurately reflect those expenditures. Id.

Thus, his situation is similar to Mr. Cicoria’s. At the time, however, [n]othing in this section [New York election laws] referred] to campaign committee funds or in any other way identifie[d] the source of the moneys [sic] from which expenditures may be made. The clear intent was to regulate what could be spent “in respect of any election[,]” and not to regulate or restrict a candidate’s expenditures for nonelection purposes. Id. at 410 .

After argument on Pisani’s appeal, the New York legislature directly addressed the issue. New § 14-130 provides: Contributions received by a candidate or a political committee may be expended for any lawful purpose. Such funds shall not be converted by any person to a personal use which is unrelated to a political campaign or the holding of a public office or party position. N.Y.Election Law § 14-130 (Consol.1986).

Maryland election laws are not as specific as New York laws on this particular point. But, Maryland law does specify that campaign contributions and expenditures are “to promote or assist in the promotion of the success or defeat of any candidate____” Md.Ann.Code art. 33, § 1-1(a)(5), (7) (Supp.1989). Mr. Cicoria may not be permitted to willfully or knowingly obtain or exert unauthorized control over property (funds) of his campaign committee, which control has the purpose of depriving the committee of that property (the funds) and the opportunity to promote the ⁴¹⁹ success of his candidacy. The indictment, quite appropriately, alleged that he did “steal” money “from the campaign committee known as Citizens for Cicoria.” B. Cicoria advances the argument that the penalty provisions of the Election Code’s section on Fair Election Practices are exclusive. 17 For example, § 26-20 provides that [a]ny person who violates any of the provisions of this subtitle is guilty of a misdemeanor, and upon conviction shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned for not more than one year, or both, in the discretion of the court.

If a different penalty is specifically prescribed for violation of any section in this subtitle and expressly set forth therein, the specific penalty applies and the penalty set forth in this section does not apply. Appellant is correct to point out that the Legislature has not provided for theft as an offense under the Election Code. 18 Cicoria, however, provides no authority to support his contentions that § 26-20 precludes the State from prosecuting him under other statutes or the common law for violations related to the elections arena. Our research of the legislative history reveals nothing that would support ⁴²⁰ Cicoria’s position. 19 Looking to other jurisdictions, we find one case similar to the instant case. In United States v. Hopkins, 916 F.2d 207 (5th Cir.1990), the defendants circumvented the prohibition on corporate political contributions as regulated by the federal election laws.

See 2 U.S.C. §§ 431-456 (1988). The defendants argued that the government should have prosecuted them only under the federal election laws (misdemeanor offenses), and not under Title 18 for fraud, concealment, and misapplication of funds (felonious offenses). Hopkins, 916 F.2d at 218 . The court found their argument “meritless.” Id.

The court quoted from United States v. Batchelder, 442 U.S. 114 , 99 S.Ct. at 2198, 60 L.Ed.2d 755 (1979). The United States Supreme Court stated that ⁴²¹ “when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against either class of defendants.” Id, at 123-24, 99 S.Ct. at 2203-04 . In addition, the court in Hopkins noted “[tjjhe only exception arises where Congress clearly intended that one statute supplant another; the fact that one statute is more specific than the other is not sufficient.” Hopkins, 916 F.2d at 218 . Furthermore, “nor does the fact that one statute prescribes a felony and the other prescribes a misdemeanor affect the prosecutor’s authority to choose among statutes.” Id.

There is no indication in the federal election laws that Congress intended them to supplant the general criminal statutes. Moreover, the defendants in this case violated not only the election laws but also committed acts that constituted independent violations of the more general criminal statutes of Title 18. Conviction under those sections requires proof of elements not required to prove a violation of the election laws. The offenses under Title 18 thus stand wholly apart and separate from any violation of the federal election laws.

The defendants’ contention that they were improperly prosecuted under Title 18 is without support. Id. at 218-19 (citation omitted). Reading the Election Code, we do not find theft listed as an offense. Furthermore, comparing the Fair Election Practices sections of the Code with the theft statutes, we find the elements of theft as a crime differ from election law violations.

Thus, absent any indication from the Legislature that § 26-20 precludes prosecution under other statutes or the common law, we hold that the State properly charged Mr. Cicoria with theft and conspiracy to commit theft. Therefore, based on the discussions above, we hold that counts one and two charged cognizable offenses. See Williams v. State, 302 Md. 787, 791 , 490 A.2d 1277 (1985). ⁴²² II. Did the State Prosecutor have the statutory authority to bring the