Khan v. State

DAVIS, Judge. Aamir Anis Khan and his brother Aasim Anis Khan filed a Motion to Dismiss criminal indictments for several counts of theft and conspiracy to commit theft in Montgomery County. The trials were consolidated. Appellants argued in the Circuit Court for Montgomery County that prosecution on the indictments would place them in double jeopardy because the indictments previously were used to enhance their sentences for federal convictions in the District of Columbia.

The circuit court (Pincus, J.) denied the Motion to Dismiss on September 25, 1996, and appellants filed a timely notice of appeal. They present one question for our review, which we restate as follows: Does the Double Jeopardy Clause of the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment bar the State’s prosecution of an indictment after the State presented evidence in a federal criminal proceeding as to the existence of the indictment, and, although the enhanced sentence resulting from the testimony of the State’s representative was overturned on appeal, appellants served more prison time than they would have had the indictments not been used to enhance their federal sentence? To this novel question, we answer “no.” We affirm the circuit court’s judgment. FACTS The facts of this case are relatively straightforward and, to make matters easier, the State stipulated at the motions hearing to most of appellants’ version of the events leading to the Motion to Dismiss.

Appellants were arrested and indicted in Montgomery County on ten counts each of theft and one count each of conspiracy to commit theft. The indictments stemmed from appellants’ alleged participation in a computer sales fraud scheme conducted in Montgomery County while using the business name Integra Computers (Integra). Prior to the issuance of the State indictments, appellants were indicted in the United States District Court for the ⁶⁴⁰ District of Columbia for federal crimes that arose from the same type of computer sales scheme, this time conducted under the name National PC Liquidators (NPCL). 1 They were convicted of those offenses in a jury trial. During the subsequent sentencing hearing in the district court, John Cady, an employee of the Montgomery County State’s Attorney’s Office, testified for the United States concerning the post-federal indictment issuance of the State indictments for the Integra scheme.

The district court (June Green, J.) used the State indictments to depart upward from the Federal Sentencing Guidelines (Guidelines) for conviction under the NPCL scheme, reasoning as follows: The Court finds ... that there is sufficient evidence that the defendants both engaged in substantially similar criminal activity in Maryland and that the Court considers a copy of the Indictment from the Circuit Court of [Montgomery County] naming the defendants and alleging that they engaged in similar criminal conduct on dates following the indictment and while on bond in this case to a matter of two items. Accordingly, the Court finds that a three-level enhancement pursuant to Sentencing Guidelines, Section 2J1.7, is warranted. The court also imposed a “criminal history” level enhancement of one. Without the three-level enhancement, the offense level for sentencing would have been twelve.

With the enhancement, the level was fifteen. This Court is, of course, not shackled by the rigidly formulaic constrictions that the Guidelines impose upon the federal district courts of this country. According to the district court, however, the sentence required by the Guidelines for an offense level of fifteen, with a criminal ⁶⁴¹ history enhancement of one, is eighteen to twenty-four months. The court sentenced appellants to incarceration for twenty-four months.

With an offense level of twelve and a criminal history enhancement of one, the sentence under the Guidelines would have been sixteen months. 2 The district court’s use of the Integra indictments to depart upwardly from the recommended offense level was vacated on appeal to the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals noted that post-offense misconduct may justify an upward departure in offense level if it shows extensive criminal involvement, United States v. Khan, No. 95-3070, slip op. at 2-3, 1996 WL 311458 (D.C.Cir. 1996) (citing United States v. Fadayini, 28 F.3d 1236, 1242 (D.C.Cir.1994)), but said that a sentencing court must base its factual findings on a preponderance of the evidence. Id. at 3. An indictment for criminal conduct issues upon probable cause.

Id. Thus, the court concluded, the existence of the indictment cannot alone support a finding of extensive criminal involvement through post-offense misconduct. Id. The court added that the indictment also could not be used to enhance the federal sentence because it alleged no specific criminal acts occurring after April 20, 1994, the date of the indictment on federal charges.

The circuit court remanded to the district court for resentencing. Id. Ordinarily, a decision to vacate a sentence and remand for resentencing renders harmless any error committed during the original sentencing hearing. This case is unusual, however.

Before the original sentencing hearing and while the appeal on the sentence enhancement was pending, appellants were incarcerated. The parties stipulated at the hearing in the Montgomery County Circuit Court that, had appellants been sentenced to incarceration for sixteen months, they ⁶⁴² would have been released on June 7, 1996 at the latest. In fact, because of the enhanced sentence, and despite its voi-dance on appeal, they were not released until July 5, 1996— almost one month later. 3 Thus, although the Court of Appeals negated on the record the district court’s error, the erroneous enhancement caused appellants to serve more time than they would have served without the enhancement. During the prosecution on the State charges following their release, appellants filed the Motion to Dismiss that, when denied, resulted in this appeal.

At the hearing on the motion, appellants argued that the State’s involvement in the federal proceedings had caused appellants to serve more time than they would have served if the State’s representative had not voluntarily testified as to the existence of the pending Integra indictments. Thus, argue appellants, any subsequent prosecution under the State indictments would place them in double jeopardy because the State had effectively “prosecuted” the matters under indictment in the federal proceeding by participating in the federal sentencing, and this “prosecution” resulted in punishment already served for the Integra indictments. To prosecute the Integra indictments, appellants conclude, would subject them to multiple punishments for the same offense, a violation of the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. ANALYSIS I In North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), the Supreme Court outlined three guarantees of the Double Jeopardy Clause of the Fifth Amendment: ⁶⁴³ It protects against a second prosecution for the same offense after acquittal.

It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. Id. at 717 , 89 S.Ct. at 2076 . 4 This list is not exhaustive, however; for example, the Double Jeopardy Clause also collaterally estops the relitigation of facts found in prior prosecutions. Whittlesey v. State, 340 Md. 30, 80 , 665 A.2d 223 (1995) (Whittlesey II), cert. denied, — U.S. -, 116 S.Ct. 1021 , 134 L.Ed.2d 100 (1996).

Separate sovereigns — in this case the federal government and the State of Maryland — may prosecute an accused under separate criminal offenses even if the offenses are based upon the same conduct. United States v. Wheeler, 435 U.S. 313, 316-17 , 98 S.Ct. 1079, 1082-83 , 55 L.Ed.2d 303 (1978); Gillis v. State, 333 Md. 69, 73 , 633 A.2d 888 (1993), cert. denied, 511 U.S. 1039 , 114 S.Ct. 1558 , 128 L.Ed.2d 205 (1994). Appellants, recognizing this, frame the sentence enhancement based upon a State indictment and subsequent prosecution under the indictment as multiple punishments for the same offense — the violation of a Maryland criminal statute. Conflated with this argument is an alternative argument that the State of Maryland, by voluntarily testifying at the federal sentencing hearing, effectively “prosecuted” the criminal conduct during the sentencing hearing, and thus is barred from prosecuting the Integra indictments.

The foregoing description of appellants’ claim illustrates its nature as a square peg striving valiantly to wedge itself into a ⁶⁴⁴ round hole. Appellants’ perception of the nature of the federal sentencing proceeding was best summed up by appellants’ counsel’s assessment of the situation in the circuit court: [Tjhis ... is not like being tried for the same set of facts in two different jurisdictions. What happens is it is, instead, being tried in one jurisdiction and having your indictment in another case by a state government used to enhance your punishment and in fact having that been accomplished solely because you were indicted by that jurisdiction and with their participation, for which there was punishment. Thus, appellants at once characterize the enhancement and subsequent prosecution as a “multiple punishment” case and a “subsequent prosecution” case.

Chief Judge Bell has emphasized the importance of the distinction between the two types of cases, commenting that “[t]hat distinction is not, nor was it meant to be, a slight one.” Whittlesey II, 340 Md. at 98 n. 9, 665 A.2d 223 (Bell, J., concurring and dissenting). Appellants’ arguments thus depend on the enhancement imposed by the district court being “punishment” for the crimes alleged in the Integra indictments, or on Maryland’s participation in the federal sentencing proceeding constituting a “prosecution” of those crimes. We conclude that this case is neither a “multiple punishment” case nor a “subsequent prosecution” case; rather, it is something of a “sheep in wolfs clothing” — a clever attempt to disguise a standard “dual sovereign” case as both an unconstitutional “multiple punishment” case and a “subsequent prosecution” case. Because of the unusual nature of appellants’ arguments, it is better to describe what this case is not rather than attempt to describe what it is.

Thus, we shall address both labels that appellants assign to the proceedings. Multiple Punishment Even assuming the “dual sovereign” doctrine did not apply — that Maryland was actually involved in the sentence enhancement in a way that would qualify as “prosecution”— appellants’ argument that they were already “punished” for ⁶⁴⁵ the crimes alleged in the Integra indictments is wholly without merit. The Court of Appeals has addressed the constitutionality of sentence enhancements based on uncharged conduct for which the convicted person is later charged and tried. In Smith v. State, 308 Md. 162 , 517 A.2d 1081 (1986), the trial court, during the sentencing phase of a rape trial, admitted and considered witness testimony of uncharged conduct, ultimately using the testimony to enhance the sentence imposed for the rape conviction.

In ruling this use of the testimony constitutional, the Court of Appeals stated: Smith’s ... contention that consideration of uncharged conduct may lead to a double jeopardy violation if a subsequent trial is held is ... meritless. Such evidence is introduced at sentencing to provide the presiding judge with a complete composite of the defendant. Manifestly, it is not a trial to punish the defendant for an untried crime. In United States v. Wise, 603 F.2d 1101 (4th Cir.1979), the defendant was convicted of various drug-related offenses.

At sentencing the judge considered perjured testimony given by the defendant at the trial of a codefendant. At that time, the defendant had not been convicted of perjury. Citing United States v. Grayson, 438 U.S. 41 , 98 S.Ct. 2610 , 57 L.Ed.2d 582