Silbert v. State

Murphy, C. J., delivered the opinion of the Court. Between the months of May and October of 1967, a team of agents of the Internal Revenue Service, operating in an undercover capacity, conducted an investigation in Baltimore City into suspected violations of the Federal Wagering Tax laws. Five of the federal agents subsequently testified before the Grand Jury of Baltimore City. As a result, a number of indictments were returned on May 9, 1968, charging the appellants, either individually or jointly, with various substantive violations of the State’s gambling and lottery laws, conspiracy to violate the lottery laws, and with maintaining a disorderly house.

The cases were tried in the Criminal Court of Baltimore almost continuously from January 13, 1969 to April 1,1969 with these results: ⁵²⁰ I. Indictment 2893 (Appeal No. 217) Appellants Fred Silbert, Arnold Silbert, Michael Silbert, and Delores Wilt were found guilty by a jury of both counts of the Indictment, viz., (1) continuously from May 10, 1967 to November 15, 1967, at the Florida Bar, maintaining a disorderly house for gambling purposes, and (2) during the same period of time, at the same place, maintaining a disorderly house and procuring and permitting evil persons there to conduct themselves to the common nuisance of all the people. Appellant Shreck was found guilty of only the first count; appellants Cubbage and Devenney were found guilty of only the second count. At a separate court trial, appellant Philip Silbert was found guilty of the first count. (Appeal No. 297) II.

Indictment No. 2895 (Appeal No. 298) Appellants Philip Silbert, Michael Silbert, Bondroff, Shreck, and Wilt were found guilty by a jury of the third count, charging them with conspiracy to violate the lottery laws Continuously from June 1, 1966 to November 15,1967. At a separate court trial appellant Maurice Silbert was also found guilty of the third count. (Appeal No. 299) III. Indictment Nos. 2899, 2900, 2902, and 2903 (Appeal No. 300) Appellant Shreck was found guilty by a jury of various counts of the Indictments, and under addenda thereto, charging possession of lottery paraphernalia in violation of Maryland Code, Article 27, Section 362, and of the sale of lottery tickets on specified dates to designated persons.

IV

Indictment Nos. 2908-2910 (Appeal No. 301) Appellant Philip Silbert was found guilty at a court trial of various counts of the Indictments, and under addenda thereto, charging possession of lottery paraphernalia in violation of Section 362, and of the sale of a lottery ticket to Irv Davis on July 24,1967. ⁵²¹ The cases were consolidated on appeal and present numerous questions, the first of which is whether the lower court erred in denying appellants’ pretrial motions for disclosure of the Grand Jury testimony. The motions were based on these facts: The federal agents who testified before the Baltimore Grand Jury in May of 1968 had earlier — on October 23, 1967 — obtained federal search warrants in connection with their investigation of violations of the Federal Wagering Tax laws; and in pursuance thereof, they had searched premises under the control of appellants Philip Silbert, Bondroff, and Shreck, seizing incriminating gambling evidence at that time. Subsequently, in August of 1968 after the Baltimore City Indictments had been returned against the appellants, the Federal District Court in Baltimore held that as a result of the Supreme Court’s decisions in Marchetti v. United States, 390 U. S. 39 , and Grosso v. United States, 390 U. S. 62 , the federal search warrants were constitutionally defective and, consequently, the government would not be permitted to use, directly or indirectly, any evidence seized under the warrants in any federal or State prosecution involving the defendants in those cases. Silbert, et al. v. United States, 289 F. Supp. 318, 320 .

It was upon this foundation that all appellants claimed a “particularized need” under Dennis v. United States, 384 U. S. 855 , to review the Grand Jury testimony given by the federal agents to determine whether any of the Indictments were based on evidence seized in October of 1967 in the course of the illegal federal searches. One of the appellants urged in his motion that he was entitled, at the least, to an in camera inspection by the court of the Grand Jury testimony, so that the court could determine whether any testimony given by the federal agents related to the illegal searches, and, if so, that it be made available to him. In answer to each of the appellants’ motions for disclosure the State claimed that it had not utilized any evidence before the Grand Jury which came within the purview of the federal court ruling in Silbert prohibiting use of the proscribed evidence. ⁵²² Extended pretrial evidentiary hearings were held on the motions to disclose. An Assistant United States Attorney testified that none of the evidence seized in the illegal federal searches was ever made available to State officials.

He testified that the ruling in Silbert was anticipated prior to the time the federal agents testified before the Baltimore Grand Jury in May of 1968 and that the federal agents were instructed not to testify concerning evidence obtained by the illegal federal searches. The State’s Attorney for Baltimore City confirmed the testimony of the federal prosecutor. He stated that the federal agents were made available to him to testify only with respect “to any audio or visual observations” which they made during their investigation between May and October of 1967. He testified that no evidence seized in the federal raids in October of 1967 was made available to the State.

There was testimony from the State’s Attorney and his Deputy showing that one or the other of them was present throughout the course of the Grand Jury’s proceedings, and that no testimony violative of the federal court’s ruling was given. The court was then requested by one of the appellants, with the apparent concurrence of the others, to make an in camera inspection of the Grand Jury testimony to determine the question. The record discloses that the court (Prendergast, J.) read the Grand Jury testimony and concluded that nothing in the testimony of the federal agents violated the federal court’s order in Silbert. Prior to ultimately so concluding, the court had its attention directed by the State’s Attorney to five instances in the Grand Jury transcript where some reference, direct or indirect, had been made to the illegal federal raids.

The court found such references to be casual and not in violation of the federal court ruling. They were read into the record at the hearing. The references were wholly innocuous and appellants did not otherwise contend. At a later pretrial hearing, the court (Harris, J.) afforded appellants the opportunity to interrogate the federal agents with respect to their testimony before the Grand ⁵²³ Jury.

Each agent testified without equivocation that he was under instructions not to testify with respect to evidence seized at the time of the illegal federal raids and each testified that no testimony prohibited under Silbert was ever given by him. At the conclusion of their testimony, the court ruled that no evidence offered to the Grand Jury by any of the five agents violated “either the letter or the spirit” of the federal court ruling. Disclosure of Grand Jury Minutes When, and under what circumstances, the minutes of the grand jury may be inspected by a criminal accused has become a thorny issue in recent years. While there is no absolute right to inspect grand jury testimony, Grimm v. State, 6 Md. App. 321, 331 , a criminal accused may, in a proper case, be afforded access to grand jury minutes if he demonstrates a “particularized need” for disclosure, Dennis v. United States, 384 U. S. 855 , Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395 .

Thus, the policy favoring grand jury secrecy has not been abandoned; it remains firm except that in some cir-> cumstances the ends of justice may require disclosure, the burden resting on the accused to establish the requisite “particularized need” which, among other things, outweighs the reasons underlying the policy of grand jury secrecy. In this latter connection, grand jury proceedings have traditionally been cloaked with secrecy not only to preserve the freedom of inquiry, but to protect the grand jury from outside interference or pressure, and to protect the persons investigated, but not indicted, from falling into public disrepute on the basis of the one-sided presentation of unfavorable evidence to the grand jury. See Piracci v. State, 207 Md. 499 ; Coblentz v. State, 164 Md. 558 ; In Re Report of Grand Jury, 152 Md. 616 . The question whether a criminal accused has demonstrated a “particularized need” sufficient to permit him to review the minutes of the grand jury is one of fact to be decided in each case; there is and can be no general test.

One area peculiarly subject to a showing of “partícula ⁵²⁴ rized need” justifying a discreet and limited lifting of the grand jury secrecy rule involves the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, or to test his credibility. See Dennis v. United States, supra; United States v. Socony-Vacuum Oil Co., 310 U. S. 150 ; Worthy v. United States, 383 F. 2d 524 (D.C. Cir.) ; United States v. Youngblood, 379 F. 2d 365 (2nd Cir.). In Wilson v. State, 4 Md. App. 192, 207 , we held that the “particularized need” requirement is one which “relates to the fairness of the trial.” We found no such particularized need in Presley v. State, 6 Md. App. 419 , or in Grimm v. State, supra. See also Chesley v. State, 3 Md. App. 588 .

The cases are collected in an exhaustive Note at 20 A.L.R.3d 7 -115, entitled “Accused’s Right to Inspection of Minutes of State Grand Jury.” In their quest to inspect the Grand Jury testimony, the appellants asserted a “particularized need” to determine whether the testimony of the federal agents before that body violated the Silbert mandate; if it.did, it was undoubtedly their purpose to move to dismiss the indictments. Ordinarily, however, the competency of testimony before a grand jury will not be inquired into by the courts and does not furnish a ground to dismiss an indictment. Pick v. State, 143 Md. 192 ; Grimm v. State, supra; Wilson v. State, supra. Cf. 20 A.L.R.3d at page 77.

That an indictment be founded on illegally obtained evidence does not, in our opinion, per se require its dismissal on that ground. If it did, it is likely that persons indicted for crime would uniformly claim a need to pore grand jury minutes to ferret out some instance where illegally obtained evidence was presented to the grand jury, thus ending the tradition of grand jury secrecy. Moreover, it is questionable that the court’s ruling in Silbert was intended to place sanctions around the use of evidence, illegally obtained, at other than the actual post-indictment prosecution of the case. But assuming that the order in Silbert would provide a basis for dismissal of the indictments if its terms were violated, we think the in camera ⁵²⁵ review of the Grand Jury’s minutes undertaken by the court, with appellants’ concurrence, adequately protected the rights asserted by them in the circumstances of this case. 1 It appears from the record that appellants were satisfied when, after reviewing the Grand Jury testimony, the court concluded that none of the challenged evidence was ever presented to the Grand Jury.

While appellants now complain that the in camera technique was not adequate, we think in view of the subject matter under review — whether the agents’ testimony violated the Silbert order — that it was entirely adequate. In so concluding, we recognize that in some cases in camera review of grand jury minutes will not suffice to protect the accused’s rights, Dennis v. United States, supra; but this is not such a case. We have nevertheless ourselves reviewed the Grand Jury testimony and find that nothing therein contained violates the mandate in Silbert. 2 Appellants contend that their motion for disclosure of Grand Jury testimony asserted a “particularized need” to determine whether any evidence was presented to the Grand Jury which resulted from illegal wiretapping, electronic interception, or eavesdropping. Their motion was not as broad as they contend.

Only in colloquy with the court during the course of the pretrial hearings was any reference, even obliquely, made to a necessity to review the Grand Jury testimony to determine whether any evidence flowing from illegal wiretapping or electronic interception was presented to the Grand Jury. As part of its in camera review of the Grand Jury minutes, the court concluded that no such evidence had been placed before the Grand Jury, and we, too, in our review of the Grand Jury minutes, reached the same conclusion. Appellants also claim that their motions for disclosure of the Grand Jury testimony asserted a “particularized ⁵²⁶ need” to inspect the minutes to assist them in pursuing their motions for severance and for relief from prejudicial joinder. Nothing in the motions, or in the pretrial proceedings even remotely placed this question in issue in the context of a requirement to review the Grand Jury testimony.

If it had, we would have no difficulty in concluding that the appellants had no such right in the circumstances of this case. Appellants next claim that their motions for disclosure of the Grand Jury testimony were intended to assist them in cross-examining and in impeaching and limiting the testimony at the trial of those witnesses who testified before the Grand Jury. The written motions for disclosure, filed prior to trial, made no such assertion. The record discloses that at the very end of the pretrial hearings, appellant Bondroff made an oral motion to this end on his own behalf.

The court deferred its ruling on the motion. At the trial of the conspiracy case, after one of the federal agents, James Lane, had concluded his direct testimony, appellant Bondroff filed a written motion seeking to inspect Lane’s Grand Jury testimony. He claimed that there were “certain inconsistencies” in the agent’s testimony concerning an inculpatory statement which Bondroff allegedly made. The motion was denied by the court.

We think in the circumstances of this case that if it was error not to permit Bondroff to review the testimony, it was harmless. There was massive evidence of Bondroff’s involvement in the conspiracy. To have impeached agent Lane’s trial testimony on the point at issue — whether it was Bondroff or Philip Silbert who made one particular incriminating statement — would have had little likelihood of destroying Lane’s credibility as a witness, or causing the jury to reach a conclusion other than it did. Of course, the other appellants, not having raised the question, can reap no benefit from Bondroff’s motion.

Appellants also claim that the court committed prejudicial error when it signed an ex parte order permitting the State’s Attorney to break the seal of the Grand Jury ⁵²⁷ testimony and review it in preparation for trial. We see nothing improper. The policy of secrecy of grand jury minutes does not extend to the prosecutor. That he is afforded exclusive access to such minutes to assist him at the trial constitutes no reversible error.

See Dennis v. United States, supra. The Motions to Discover and Supress Evidence Obtained by Electronic Interception or Eavesdropping The appellants claim that the State failed to comply with the court’s order requiring it to disclose to them whether the State or federal government engaged in electronic interception or eavesdropping in the course of their investigation of their activities. In response to the court’s order, the State denied that any of its agents had done so, and ultimately filed a letter from the United States Department of Justice stating that no federal agents had engaged in any such activities. At the oral argument of the case appellants candidly admitted that even though the letter was made part of the record, they overlooked it.

A review of the record indicates clearly that the State fully complied with the court’s order, and we thus find no merit in appellants’ argument to the contrary. The Conspiracy Convictions The six appellants convicted of conspiracy to violate the lottery laws contend that there was no evidence before the jury permitting it to properly find that they conspired in a single conspiracy. They claim that the evidence, at its best, indicated the existence of multiple conspiracies, some of which bqre no relation to each other. Appellants offer nothing beyond this generalization in the way of argument, other than to claim that the only “common thread” that joins them together is the evidence showing that Philip Silbert visited both the Florida Bar and Harold’s Club, establishments where the other appellants were engaged either as proprietor, patrons, or employees. ⁵²⁸ We think there was sufficient evidence to justify the court denying appellant’s motions for judgment of acquittal and permitting the case to go to the jury.

The case required ten days to try; the transcript of testimony runs almost 2,000 pages. There was evidence showing that federal agents operated at Harold’s Club and at the Florida Bar in undercover roles over the summer and early fall of 1967. Their testimony, based on observations which they made, and conversations which they heard, principally within the two bars, showed the existence of a lottery operation touching both establishments, with appellants Philip Silbert and Bondroff as operating heads, Shreck as a writer-runner, and appellants Maurice Silbert, Michael Silbert, and Delores Wilt as other functionaries within the operation. See State v. Swales, Welch and Bowman, 12 Md. App. 69 , for an in-depth review of the operation of a lottery syndicate.

It would serve little purpose to recite the massive evidence of conspiracy to violate the lottery laws which the State presented in this case. Suffice it to note that, if believed by the jury, the evidence adduced at trial established the crime of conspiracy within the. guidelines of such cases as Seidman v. State, 230 Md. 305 ; Regle v. State, 9 Md. App. 346 ; Wilson, Valentine & Nutter v. State, 8 Md. App. 653 , and Jones v. State, 8 Md. App. 370 . In so concluding, we are mindful of the rule, which is particularly applicable in this case, that to establish a conspiracy, it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances. As to appellants’ generalization that, at best, only multiple conspiracies were shown, we think the observation made in Scarlett v. State, 201 Md. 310, 316 , is applicable to the evidence in this case, namely that “where a conspiracy contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to keep it up, such continuous cooperation is a single conspiracy, rather than a series of distinct conspiracies.” ⁵²⁹ The Disorderly House Convictions The seven appellants convicted under the disorderly-house indictment claim only that “State witnesses were permitted to testify as to statements made by one defendant that implicated other defendants, when such statements or admissions were made out of the presence of the other defendants.” Beyond this statement, appellants make no complaint with respect to the propriety of their disorderly house convictions.

The State claims that in view of the thousands of pages of transcript involved in the case, neither it, nor this court, should undertake to determine exactly what statements appellants are complaining about, whether proper objections were made, or whether reversible prejudice resulted. We think the State’s position is well taken and that at best appellants make a bald allegation, one not requiring us to search through the record in an effort to find error beneficial to them. We have, however, reviewed the record in the disorderly house cases and find legally sufficient evidence that appellants were conducting a disorderly house at the Florida Bar, as charged in the indictment. Convictions for Sale of Lottery Tickets Appellant Philip Silbert Indictment 2908 charged that appellant Philip Silbert, on July 24, 1967, “unlawfully did sell a lottery ticket to Irv Davis.” Silbert claims that as there was no evidence that he sold a lottery ticket to Davis, the court erred in not granting his motion for judgment of acquittal.

The evidence at the trial showed that federal agent James Lane, acting in an undercover capacity, went almost daily to Harold’s Club between June and October of 1967. Lane became acquainted with Irv Davis, who, like himself, also frequented Harold’s Club on a daily basis. Lane testified with respect to observations made by him in Harold’s Club prior to July 24, 1967 which led him to conclude that a lottery operation was there being con ⁵³⁰ ducted. He observed that Silbert and Davis were very friendly and would talk together at the Club about numbers; and that on July 24 Davis asked Silbert, who was then in the Club, what the number was, to which Silbert responded by saying “695.” Thereafter, according to Lane: “Davis approached Philip Silbert with his Bar check.

He showed him his Bar check and said he wanted to play his check number, 964, but he didn’t have any money. Silbert glanced at the check and said: ‘Don’t worry, Irv, you are on.’ ” Lane testified that there was no transfer of any physical object between Davis and Silbert. He admitted that he did not overhear the amount of the bet which Davis placed with Silbert. Lane’s extensive experience in lottery investigations having been established, he characterized the July 24 transaction in these terms: “I observed Irv Davis take a chance on the lottery, buy a ticket, in essence.” Lane explained: “The sale of lottery tickets can involve anything from an actual ticket to the promise to pay on a given number.

It runs the gamut depending on the type of operation, the individual involved, their relationship between one another; it can constitute just about anything so long as the fact is that a three digit number is indicated, and a promise to pay is apparent in the individual who receives the bet.” Lane also testified that the buyer does not always pay for his number at the time the sale is made; that it depended upon the relationship between the individual accepting the wager and the person betting. Maryland Code, Article 27, Section 356, prohibits the sale of lottery tickets in this State. It specifies: ⁵³¹ “No person