Goldberg v. State

ELDRIDGE, Judge. In 1985, the petitioner, Bernard F. Goldberg, Sr., then a member of the Maryland Bar, was indicted in the Circuit Court for Howard County on five counts of fraudulent misappropriation by a fiduciary, one count of theft over $300.00, and one count of commingling client’s funds with ⁶⁵⁵ his own. 1 One of the fraudulent misappropriation counts and the commingling count related to a transaction involving real estate in Frederick County and, inter alia, money from the City of Frederick entrusted to Mr. Goldberg. One of the fraudulent misappropriation counts concerned Mr. Goldberg’s conduct as settlement agent for the purchase of real property in Baltimore County. The remaining counts related to matters occurring solely in Howard County.

Mr. Goldberg filed in the Circuit Court for Howard County a motion to dismiss the indictment on the ground that the appearance of two unauthorized persons before the grand jury rendered the indictment invalid. The two allegedly unauthorized individuals were the Deputy State Prosecutor and an Assistant State Prosecutor. The office of the State Prosecutor was initially created by Ch. 255 of the Acts of 1975. Following the decision in Murphy v. Yates, 276 Md. 475 , 348 A.2d 837 (1975) (which held the 1975 Act unconstitutional) and the ratification of a constitutional amendment (Ch. 545 of the Acts of 1976), the office of State Prosecutor was re-created pursuant to Ch. 612 of the Acts of 1976, codified in Maryland Code (1957, 1987 Repl.Vol.), Art. 10, § 33A et seq.

Under the 1976 statute the State Prosecutor may employ such professional staff as authorized in the State budget (Art. 10, § 33C). With regard to investigations, Art. 10, § 33B, delineates the authority of the State Prosecutor as follows: “(b) Investigations — Offenses enumerated. — Except with respect to offenses alleged to be committed by himself or members of his staff, he may, on his own initiative, or at the request of the Governor, the Attorney General, the General Assembly, the State Ethics Commission, or a State’s Attorney, investigate: (1) Criminal offenses under the State election laws; (2) Criminal offenses under the State Public Ethics Law; ⁶⁵⁶ (3) Violations of the State bribery laws in which an official or employee of the State or of a political subdivision of the State or of any bicounty or multicounty agency of the State was the offeror or offeree, or intended offeror or offeree, of a bribe; (4) Offenses constituting criminal malfeasance, misfeasance, or nonfeasance in office committed by an officer or employee of the State or of a political subdivision of the State or of any bicounty or multi-county agency of the State. Any person who is advised by the State Prosecutor that he is under investigation may, at his discretion, release this information including any results pertaining to him to the public; and (5) Violations of the State extortion, perjury, and obstruction of justice laws related to any activity described in subsection (b)(1) through (4). (c) Same — Criminal activity in more than one jurisdiction. — At the request of either the Governor, Attorney General, General Assembly or a State’s Attorney, the State Prosecutor may investigate criminal activity conducted or committed partly in this State and partly in another jurisdiction, or which is conducted or committed in more than one political subdivision of the State.” As previously indicated, the basis for Mr. Goldberg’s motion to dismiss the indictment in this case was that two members of the State Prosecutor’s staff appeared before the grand jury and were allegedly unauthorized to do so.

The indictment itself, however, was signed by the State’s Attorney for Howard County. At the hearing on the motion to dismiss the indictment, the following facts were disclosed. When the Howard County State’s Attorney’s office first learned of the allegations against Mr. Goldberg, that office concluded that the investigation should be referred to the State Prosecutor. This decision was based on three factors: 1. the investigation involved more than one county; 2.

Mr. Goldberg was then the Public Defender in Howard County; 3. Mr. Goldberg had once represented the State’s Attorney in a ⁶⁵⁷ civil case. Thus, Mr. Hymes, the State’s Attorney for Howard County, testified as follows: “A ... I believe at one time I wrote a letter to Mr. Montanarelli [the State Prosecutor] asking for the assistance of his office in conducting the investigation and if, in fact, the investigation resulted in information which would cause one to believe that charges ought to be brought that his office would be appointed Special Assistant State’s Attorney for that purpose. “Q And you realized at that time that ... that his office in its own right did not have jurisdiction in this case did you not? “A No, I did not.

I was under the impression that there was a pretty good possibility that his office did have jurisdiction. If I can elaborate on this because my association with the case is reasonably minimal. “Q Go ahead. “A I first became acquainted with this case when a member of Mr. Goldberg’s family, his son, came to the office and wanted to give me some information which he wanted me to look into with reference to Mr. Goldberg, Mr. Bernard Goldberg. When his son began the conversation, it was obvious to me that there was going to be some information which would have to be investigated and at that particular point it would probably require the assistance of accountants or auditors or something of that nature. It may be in several jurisdictions, at least more jurisdictions than Howard County.

At that particular point, I explained to young Mr. Goldberg that his father was the Public Defender; that as a result of his particular appointment as Public Defender, I in our office had to work with the elder Mr. Goldberg on a daily basis; that no matter what would happen, there would be an appearance of a conflict of interest. As a result of that at least appearance, it was my decision to refer the case to the State Prosecutor’s office for assistance in whatever ⁶⁵⁸ method may be appropriate as a result of their investigation.” “Q Okay. Were there any other reasons why you didn't want to ... want to ... why you didn’t want to handle this case? Did you have a personal relationship with Mr. Goldberg at any time? “A Many, many years ago Mr. Goldberg rep ... represented me in a civil matter. “Q I see. “A And I didn’t ...

I just didn’t think that the public would accept whatever happened as long as I was personally involved in it. So, I thought that it would be best to have some outside, impartial source look into it. “Q But, you signed the indictment in this case. “A Yes.” The Deputy State’s Attorney for Howard County also testified at the hearing that “one of the main reasons that we initially referred it to the ... to the office of the State Prosecutor also was the possibility that it might involve more than one jurisdiction. The nature of the ... of the complaints that we were receiving indicated that it might not be solely Howard County. So, we asked ... we talked it over on the telephone with the ... the [State] Prosecutor and asked him to investigate the matter.” After the Howard County State’s Attorney’s office requested that the State Prosecutor handle the investigation, the State Prosecutor agreed and assigned the Deputy State Prosecutor, Gerald R. Ruter, and an Assistant State Prosecutor, Bernard A. Penner, to conduct the investigation.

Thereafter, the State’s Attorney for Howard County also appointed Mr. Ruter and Mr. Penner as “Special Assistant State’s Attorneys for Howard County,” and they were administered an oath to this effect by the Clerk of the Circuit Court for Howard County. At no time were the appointments of Mr. Ruter and Mr. Penner, as Special ⁶⁵⁹ Assistant State’s Attorneys for Howard County, authorized by the Circuit Court for Howard County, the Howard County Executive, or the Howard County Council. Mr. Ruter and Mr. Penner received no compensation from the State’s Attorney’s office or from Howard County; their only compensation during the period of the investigation consisted of their salaries from the State Prosecutor’s office. The investigation of the allegations against Mr. Goldberg, and the presentation of evidence to the grand jury, was handled entirely by Mr. Ruter and Mr. Penner.

There was no suggestion, however, that they participated in the deliberations of the grand jury. During the relevant period, except for those times when Mr. Ruter and Mr. Penner were presenting evidence to the grand jury or otherwise engaged in the Goldberg investigation, they continued to perform their other duties as Deputy State Prosecutor and Assistant State Prosecutor. At the conclusion of the evidentiary portion of the hearing on the motion to dismiss, the legal arguments of each side primarily focussed upon whether the State’s Attorney of Howard County was authorized to appoint Messrs. Ruter and Penner as Special Assistant State’s Attorneys.

The State, however, also relied upon Art. 10, § 33B(c), authorizing the State Prosecutor, at the request of, inter alia, a State’s Attorney, to “investigate criminal activity ... conducted or committed in more than one political subdivision of the State.” The circuit court denied the motion to dismiss, holding that Messrs. Ruter and Penner were authorized to present evidence to the grand jury. The grounds for the circuit court’s decision were that the State’s Attorney for Howard County was authorized to appoint Special Assistant State’s Attorneys without the approval of the circuit court or the Howard County Executive or the County Council, and that no provision of law precluded the appointment of members of the State Prosecutor’s staff as Special Assistant State’s Attorneys. ⁶⁶⁰ Mr. Goldberg waived a jury trial and was tried before the court on a not guilty plea and an agreed statement of facts. He was found guilty on four counts of fraudulent misappropriation by a fiduciary and one count of theft over $300.00.

He was sentenced to seven years imprisonment, all but two years being suspended in favor of probation for five years, and restitution was ordered. On appeal to the Court of Special Appeals, Mr. Goldberg’s sole contention was that the trial court erred in denying the motion to dismiss. He contended (1) that the State’s Attorney for Howard County lacked the authority to appoint Special Assistant State’s Attorneys and (2) that, in any event, members of the State Prosecutor’s staff could not be appointed Special Assistant State’s Attorneys. The Court of Special Appeals, rejecting these arguments and agreeing with the circuit court, affirmed.

Goldberg v. State, 69 Md.App. 702 , 519 A.2d 779 (1987). Although it held that Mr. Ruter and Mr. Penner were authorized to appear before the grand jury as Special Assistant State’s Attorneys, the intermediate appellate court noted that they were not authorized to appear before the grand jury under Art. 10, § 33B(c), as members of the State Prosecutor’s staff. 69 Md.App. at 707 -708 n. 2, 519 A.2d at 782 n. 2. Thereafter, this Court granted Mr. Goldberg’s petition for a writ of certiorari. A motion to dismiss an indictment ordinarily should be granted when an unauthorized person is present before the grand jury during the inquiry leading up to the indictment.

See, e.g., Lykins v. State, 288 Md. 71, 82-83 , 415 A.2d 1113, 1120 (1980); Bartram v. State, 280 Md. 616, 626-627 , 374 A.2d 1144, 1149 (1977); State v. Ensor, 277 Md. 529 , 356 A.2d 259 (1976); Coblentz v. State, 164 Md. 558 , 166 A. 45 (1933). The State offers alternate arguments as to why Messrs. Ruter and Penner were authorized to present evidence to