Thomas v. State

DAVIS, J. Robert L. Thomas, appellant, was tried by a jury in the Circuit Court for Prince George’s County (Smith, J.) from August 14 to 23, 2006 on charges of bribery, conspiracy to commit bribery and conspiracy to commit theft. The jury convicted appellant of conspiracy to commit bribery and bribery, but acquitted him of conspiracy to commit theft. On May 11, 2007, appellant was sentenced to twelve years in prison, with all but thirty months suspended, in lieu of five years supervised probation. Appellant was also ordered to pay $10,000 in restitution. ¹⁵⁸ Appellant appeals his conviction and presents three questions for this Court’s review: I. Were the trial court’s instructions on the elements of bribery incorrect and misleading?

II

Did the trial court err by allowing a witness for the State to testify that, in his opinion, appellant had influence over the awarding of contracts with the county?

III

Did the trial court err by denying appellant’s motion to dismiss Count II of the charging document for failure to state an offense? For the reasons that follow, we answer all three questions in the negative. Accordingly, we affirm the judgment of the circuit court. FACTUAL BACKGROUND Appellant was hired in December 2003 as the Deputy Director of the Prince George’s County Office of Central Services.

In that capacity, appellant managed the County’s fleet and facilities. Floyd Holt, another deputy director, was responsible for procurement. The State alleged that appellant solicited bribes and engaged in a conspiracy to bribe Interior Systems, Inc. (ISI), in exchange for appellant’s efforts to influence the awarding of a County security management system contract to another company, ADT/Tyco, which would subsequently employ ISI as a subcontractor. The two other individuals alleged to have engaged in this conspiracy with appellant were Paul Wright and Robert Isom.

Appellant’s trial lasted several days and produced several hundred pages of testimony. We shall recount below only those facts necessary for an understanding of our assessment of the issues raised by appellant to this Court. ¹⁵⁹ A. The Process of Awarding Contracts Pamela Piper, Director of the Office of Central Services and Deputy Chief Administrative Officer for Government Internal Support, testified that she was the purchasing agent for the County with sole legal authority to enter into contracts on behalf of the County. Once a County agency requests certain goods or services, Piper may, inter alia, issue a request for bids (whereby the contract is awarded to the lowest bidder) or a request for proposals (whereby vendors submit proposals describing the provision of goods or services and the contract is awarded based on a number of factors not necessarily limited to price). Under the latter method, proposals are reviewed by a proposal analysis group (PAG) consisting of, inter alia, a “procurement official” and five voting members.

Each member of the PAG rates each proposal individually according to agreed-upon criteria. The procurement official then submits a final score for the proposal, along with the group’s recommendation, to the Director. Once the Director approves the recommendation, a contract is drafted which, after other intervening steps not relevant here, is signed by the County and the successful vendor. In June 2003, prior to Piper’s appointment, the County issued an invitation for bids to install a security management system in two County buildings.

The invitation for bids also indicated that the County would consider expanding the contract to approximately 140 buildings should additional funding become available. The bidding process took place and the procurement official assigned to the matter, Frederick Dorsey, recommended an award to the lowest bidder. Piper, however, retracted the invitation for bids when she was appointed to her position. In February 2004, the Office of Central Services issued a request for proposals to install the aforementioned security management system.

Piper appointed the requisite five members to the PAG tasked with the proposal review process. In July 2004, the PAG unanimously recommended awarding the ¹⁶⁰ contract to the same company that had been the lowest bidder under the invitation to bid process. However, Piper again rejected the PAG recommendation for multiple reasons, including the fact that she learned from appellant, who was not part of the PAG at that time, that a PAG member had a possible business relationship with the lowest bidding company. Subsequently, interested vendors were requested to give oral presentations regarding their proposals.

To accomplish that end, in September 2004, Piper replaced two members of the PAG with appellant and Floyd Holt. Several vendors, including ADT/Tyco, gave presentations as requested. ISI, as a prospective subcontractor, participated in ADT/Tyco’s presentation and proposal. Dorsey, the procurement official assigned to the PAG, testified that appellant and Holt asked him to see the scoring of the other PAG members of the various proposals prior to submitting their final scores, which, according to Dorsey, had never previously been done.

Appellant, Holt and another member of the group ultimately gave perfect scores to ADT/ Tyco’s proposal. The other two members of the group also gave relatively high scores to ADT/Tyco’s proposal. In November 2004, Piper was notified of the PAG’s unanimous recommendation to award the contract to ADT/Tyco, with ISI as a subcontractor. The events that form the basis for the criminal charges against appellant occurred after ADT/Tyco’s oral presentation in September 2004 and are set forth below.

B. Initial Meeting and Commencement of Investigation Melvin Pulley was ISPs Director of Telecommunications in 2004. In 2004, Dallas Evans was ISI’s president. Both Pulley and Evans attended the ADT/Tyco presentation on September 29, 2004. Although Holt was present at the presentation, appellant was not.

Afterwards, Pulley, Evans and others went to a restaurant to celebrate what they believed was a successful presentation. According to Pulley, he encountered Robert Isom at the restaurant. Pulley described Isom as a “social friend of mine.” Pulley also knew that Isom ¹⁶¹ was, at that time, working for Prince George’s County. Pulley informed Isom about the presentation and Isom offered to introduce Pulley to appellant.

Pulley testified that he followed Isom to another restaurant, where Pulley met appellant for the first time. Appellant told Pulley that he “knew all about ISI and the contract and [that] everyone on their committee worked for him.... ” Pulley shared some additional information about ISI with appellant. The next day, Isom called Pulley and informed him that “[appellant] wants to know if ISI and ADT will play.” Isom, who ultimately pled guilty to a charge of conspiracy to commit bribery in connection with these events, testified at appellant’s trial in exchange for a reduced sentence. His version of this first meeting differed from Pulley’s version.

According to Isom, he spoke with Evans at the restaurant and not Pulley. Isom added that it was Evans who asked Isom to introduce Pulley to appellant. He admitted, however, to calling Pulley the next day, at the request of appellant, “to see if ISI would play.” On October 1, 2004, Isom called Pulley and arranged a meeting at a restaurant, at appellant’s request, between Isom, Pulley and appellant. Isom testified that, before Pulley arrived, appellant told Isom that they would ask ISI for $250,000 and that there would be a “conduit.” Pulley testified that, when he arrived at the restaurant, appellant told Pulley he could not talk with him because another panel member was present in the restaurant.

According to Pulley, Isom gave him a piece of paper, which stated that appellant could guarantee the contract for a price of $250,000 and that appellant would issue “change orders” so that ISI could recoup Hhat amount. Pulley was told that ISI would have to pay one-half of that amount initially, with the other half due upon the awarding of the contract. According to Isom, appellant advised Pulley of the terms of the deal while Isom only took notes. Pulley testified that he left the restaurant and reported the incident to Evans, who was then the president of ISI.

After a ¹⁶² meeting between ISPs counsel and other ISI employees, the decision was made to report this situation to the relevant authorities. Isom testified that, over the following weeks, appellant asked him to call Pulley a number of times. C. Recorded Phone Conversations On October 7, 2004, Special Agent John Poliks of the Office of the State Prosecutor met with Pulley at ISI and copied a voice message left on Pulley’s cell phone by Isom. This message, played for the jury at trial, consisted of Isom asking Pulley to contact him in order to set up a meeting between Evans and appellant.

In Agent Poliks’ presence, Pulley called Isom and told him that he had spoken with Evans who “feels that ... that amount’s a little steep.” Isom replied, “that’s no problem,” and “we just need to ... get them together.” On October 14, 2004, Agent Poliks again copied five more voice mail messages from Isom to Pulley. These, too, were played for the jury. In one of these messages, Isom gave Pulley a phone number for “the other Bob,” ostensibly referring to appellant. In addition, on October 14, 2004, Evans called appellant with Agent Poliks present.

This conversation between appellant and Evans was recorded and played for the jury. During this phone call, Evans told appellant that he had spoken with Pulley and was “trying to understand exactly what the deal is.” Appellant responded, “Well[,] I don’t want to talk about it on the phone — you understand.” When Evans told appellant that ISI “couldn’t come up with a number that quick and that soon,” appellant responded, “No, no, no, no, no, no we can, we can work with numbers okay.” Evans asked appellant “what we would be getting, ah, you know, out of, what, what consideration we’d be getting.” Appellant replied, in part, that “there’s 144 buildings” that “we gotta add security to,” and added, “I’m going, I’m going to make the decision ... then I’m going to send you a letter ... of intent to award.... ” This conversation took place approximately one month before ¹⁶³ Piper was notified of the PAG’s unanimous recommendation to award the contract to ADT/Tyco. Later that day, during a telephone call initiated by Evans, Isom stated, “I was ... informed ... to let you know ... that what we’re talking about, he said that can be done ... in 12 months. And he has the conduit.” Regarding the money requested from ISI, Isom stated, “we understand that that’s kind of steep ... but he just wanted to get assurance [sic] from you.” Isom added that “he wants to assure you that he’s going to take you on your word ... and ah, just go ahead on and sign and you’ll know the job’s out there for contractor.

Your [sic] gonna get it ah, not only that one ... once you get in here your [sic] going to be the model for the ... county. ...” Isom also said that he wanted to get a commitment from Evans so that Isom could “take it back to him because you know, he’s back and forth in fact he’s in, in the office now ... Director’s office ... and he got to make a decision today----” Evans responded, “Well, tell him to execute it.” Over defense objection, Evans told the jury that, at the time, Evans believed appellant had the authority to influence the awarding of contracts for the County. D. Consulting Agreement As part of the on-going investigation, Agent Poliks and another special agent conducted surveillance of a meeting between Pulley and Isom at a restaurant in Washington, D.C. on October 19, 2004. At that meeting, Isom gave Pulley a manila envelope and instructed Pulley to have Evans review the enclosed document, which consisted of a draft consulting agreement to retain Washington Business Management Consulting Group, LLC (WBMCG) for a fee of $260,000, payable monthly.

On October 23, 2004, appellant and Pulley met at another restaurant. Pulley gave appellant a “marked-up” copy of the consulting agreement in an ISI envelope. Appellant took the envelope but did not open it. According to Pulley, appellant told him that “he was going to award the contract the next day to ADT and ISI.” A contract was not, in fact, awarded the following day. ¹⁶⁴ WBMCG was a consulting company belonging to Paul Wright, who was also charged with bribery, conspiracy to commit bribery and conspiracy to commit theft.

Wright was acquitted of these charges prior to appellant’s trial. Wright testified at appellant’s trial, pursuant to an agreement with the State to cooperate in an on-going investigation of public corruption in Prince George’s County, in exchange for transactional, use and derivative use immunity. According to Wright, he was contacted by appellant in October 2004, when appellant suggested to Wright the possibility of jointly pursuing consulting opportunities. Wright testified that he did not know at the time that appellant was employed by the County.

Wright prepared a draft consulting agreement and was surprised when, later that month, appellant returned a completed contract signed by ISI. In addition, Wright maintained that he had never heard of ISI before receiving the agreement from appellant. Nonetheless, he signed the agreement and agreed to attend a meeting with ISI employees on November 1, 2004. He maintained that he never thought the consulting agreement was illegal.

The November 1st meeting was to include appellant, Pulley and William Marcellino, Chief Operating Officer and a principal shareholder of ISI. The FBI prepared a check for $10,000, made to look like a check from ISI, and Marcellino took that check with him to the meeting. Wright testified that appellant called him prior to the meeting to tell him he would not be there, but that Isom would attend. Wright’s understanding, based on what appellant told him, was that ISI had already won the contract and that this meeting was to discuss future work.

At the meeting, Marcellino gave Wright the check as an initial payment on the consulting agreement with WBMCG. Isom told Pulley and Marcellino that appellant “was going to release the contract that day” and would later issue change orders so that ISI could recoup its expenses. An award of the contract, however, was not forthcoming. Agent Poliks asked Marcellino to arrange another meeting with appellant on December 6, 2004.

Once again, appellant did not attend the meeting. Wright, who attended the meet ¹⁶⁵ ing at appellant’s request, gave Marcellino a copy of a memorandum from Piper to a former member of the PAG, indicating that she had accepted the PAG’s recommendation to award the contract to ADT/Tyco. On January 31, 2005, Pulley met again with Isom, who told him that he was “no longer part of this mess Bob was doing.” Wright testified that he also decided to end his involvement in the matter for a number of reasons, including his concern that his business relationship with appellant was not a “good fit.” Agent Poliks testified that he made an attempt, to no avail, to meet with Wright under the guise of being a project manager for ISI. Phone records indicated that appellant maintained contact with Isom through January 5, 2005 and with Wright through February 5, 2005.

E. WBMCG Bank Account On May 24, 2005, Agent Poliks executed warrant searches of the homes and offices of appellant, Isom and Wright. A number of items were seized from Wright’s house, including a copy of the ISI and WBMCG consulting agreement, documents related to WBMCG’s business bank account and an invoice prepared by Wright to Marcellino. Agent Rick Barger testified that, when presented with the affidavit accompanying the search warrant, appellant stated that he had no capacity to affect bidding on contracts in the County. Appellant also denied picking anything up from Pulley at the monitored October 23, 2004 meeting.

He did admit, however, to doing paid accounting work for Wright’s consulting business, WBMCG. Wright opened a WBMCG business account on November 3, 2004, in which he deposited the $10,000 check given to him by Marcellino. Both Wright and appellant made withdrawals from this account. Wright testified that he would give some or all of his withdrawals to appellant.

Wright also testified that he felt appellant took too much money from the WBMCG account. Isom testified that he never received any money for his role in this matter, despite appellant’s promise that Isom would be paid $2,000 a month. ¹⁶⁶ Additional facts will be discussed in our analysis as warranted. ANALYSIS I Appellant initially argues that the trial court erred when it instructed the jury, over appellant’s objection, that “[i]t is not a defense to the crime of bribery that the public employee did not have the actual authority, power, or ability to perform the act for which the money was demanded or received.” Appellant argues that this instruction was incorrect and misleading. According to appellant, a correct statement of the law is rather that “it is not a defense [to bribery] that the defendant did not have expressly or officially prescribed authority, power, or ability to act so long as he implicitly had the authority, power, or ability to act in accordance with established custom or practice.” Appellant contends that he was prejudiced by the alleged erroneous jury instruction because it allowed the jury to convict him of bribery, notwithstanding any reasonable doubt that it might have had as to whether the awarding of contracts was part of appellant’s “official duties.” The State counters that appellant was attempting to persuade the jury that he could not be convicted of bribery if he lacked the actual authority to award contracts on behalf of the County.

According to the State, this entitled the State to ask for, and receive, a jury instruction stating that the lack of actual authority to perform the act is no defense to bribery. Lack of actual authority, asserts the State, is a defense to bribery only if the public employee is acting in a matter outside his or her official capacity or not related to his or her official duties. When read as a whole, the State posits, the jury instructions correctly conveyed the law on bribery. We agree.

A. Standard of Review It is well-settled that “so long as the law is fairly covered by the jury instructions, reviewing courts should not ¹⁶⁷ disturb them.” Smith v. State, 403 Md. 659, 663 , 944 A.2d 505 (2008) (quoting Farley v. Allstate Ins. Co., 355 Md. 34, 46 , 733 A.2d 1014 (1999)). On the other hand, if a challenged jury instruction is “ambiguous, misleading or confusing” to jurors, a reversal of the conviction and a new trial on remand is required. Id.

(internal citations omitted). Jury instructions cannot be read in a vacuum; rather, they must be examined as a whole, in the context of the entire charge to the jury. Id. As the Court of Appeals recently reiterated, a reviewing court “will not condemn a charge [to the jury] because of the way in which it is expressed or because an isolated part of it does not seem to do justice to one side or the other.” Id.

(quoting Morris v. Christopher, 255 Md. 372, 378 , 258 A.2d 172 (1969) (internal citations omitted)). With this standard of review in mind, we turn to the merits of appellant’s challenge to the bribery jury instruction offered at his trial. B. Authority to Act and “Official Duties” At trial, appellant elicited testimony suggesting that he lacked the actual authority to award contracts to vendors. For example, Piper testified on cross-examination that she had the sole legal authority to enter into a contract on behalf of the County.

The gravamen of appellant’s complaint before this Court is that the jury was incorrectly instructed that the lack of actual authority to commit the act for which payment is received is no defense to bribery. Appellant was convicted under § 9-201 (c) of the Criminal Law (C.L.) Article, 1 which provides, in pertinent part, that a “[a] public employee may not demand or receive a bribe, fee, reward, or testimonial to ... influence the performance of the official duties of the public employee.... ” Maryland’s bribery statute “embodies the basic elements of the common law without extending its boundaries to persons ¹⁶⁸ outside the ambit of the common law.” State v. Canova, 278 Md. 483, 491 , 365 A.2d 988 (1976) (discussing Blondes v. State, 16 Md.App. 165 , 294 A.2d 661 (1972) and construing the former Md.Code 1957, art. 27, § 23, a predecessor statute to C.L. § 9-201). 2 Under both the Maryland statute and the common law, “It is essential for a conviction of bribery that the briber must make an attempt to influence the bribee in the performance of his ‘official,’ ‘public’ or ‘legal’ duty.” Richardson v. State, 63 Md.App. 324, 328 , 492 A.2d 932 (1985). Maryland case law instructs that a public employee violates the provisions of the bribery statute by demanding or receiving a bribe to influence the employee’s performance of duties that are either expressly authorized, e.g., by statute, rule or regulation, or implicitly authorized. In Kable v. State, 17 Md.App. 16 , 299 A.2d 493 (1973), we held that a police officer who accepted $250 in exchange for agreeing to ask an Assistant State’s Attorney to enter a nolle prosequi as to various motor vehicle offenses was properly found guilty of bribery.

Id. at 18-19 , 299 A.2d 493 . We rejected the officer’s argument that he was not influenced in the performance of his “official duties” because the State’s Attorney, and not the officer, had the actual authority to nol. pros, the traffic violations. Id. at 19 , 299 A.2d 493 . We explained: In concluding that the appellant was acting within his “official duties”... we “have given the statutory definition of bribery a construction broad enough to cover cases,” such as this one, “where a public officer has accepted a bribe to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties.” Thus, while the actual decision to nol. pros, a traffic violation is one which rests with the State’s Attorney of Prince George’s County, the right of a ¹⁶⁹ police officer in that County to recommend the nol. pros, of traffic cases in which he brought the original charges must be considered a responsibility implicitly authorized by custom and circumstance, amounting to an official practice and, consequently, one of his “official duties” within the language of Article 27, Section 23 of the Code. 3 Id. at 22 , 299 A.2d 493 (internal citations omitted) (emphasis added).

Similarly, in Richardson, 63 Md.App. at 327 , 492 A.2d 932 , we upheld the bribery conviction of a defendant who, as a clerk at the State Department of Vital Records, accepted $300 in exchange for blank birth certificates. We emphasized the holding in Kable and noted “that it is sufficient that the illegal act requested of the state employee bear some relation to his official duties.” Id. at 333, 492 A.2d 932 . Indeed, an isolated statement that “[i]t is not a defense to the crime of bribery that the public employee did not have the actual authority, power or ability to perform the act for which the money was demanded or received,” would, without more, give an incomplete picture of Maryland’s law on bribery. The lack of actual authority, power or ability to perform the act for which the money is demanded or received is, in fact, a defense to bribery, if the act for which the public employee accepted the bribe involves a matter to which the public employee bore no official relation.

See also 12 Am.Jur.2d Bribery § 19 (1997)(“The lack of authority of the officer or governmental employee bribed is not a defense to the criminal offense of bribery, so long as the officer or employee acted in his or her official capacity.”) (emphasis added). Perkins and Boyce, Criminal Law 536 (3d ed.1982), agree, stating as follows: For guilt of bribery it is obviously not necessary, that the act requested be one which the bribee has authority to do, for it is frequently illegal.... If he has the power or ability ¹⁷⁰ or apparent ability to comply with the request, no more is needed. And bribery is not precluded by the fact that the bribee is only one member of a board, council or other body, and hence will be unable to bring about the desired result if other members are obstinate.

The prevailing -view is that bribery may be predicated upon an effort corruptly to influence the action of an officer or public employee provided the act is apparently within the ambit of the general scope of his duties or authority, but not if it is obviously unrelated thereto. C. The Challenged Jury Instruction Based on the foregoing discussion, the challenged portion of the trial court’s jury instruction, read out of context, would have the tendency to obscure some of the nuances set forth in Kable, Richardson and other authorities discussed supra. We do not evaluate jury instructions, however, in a vacuum. We place them in their proper context and assess the jury instructions as a whole to determine whether the instructions fairly covered the law or, conversely, whether they were ambiguous, confusing or misleading to the jurors.

Prior to the jury’s deliberations, the trial court instructed the jury, over defense counsel’s objection, as follows: Bribery. To constitute bribery, the State must prove that the defendant was an officer or employee of Prince George’s County, who corruptly demanded or received, directly or indirectly, something of value from another for the purpose of influencing the officer or employee in the performance of his official duties. In count one, the defendant is charged with Conspiracy to Commit Bribery. In count two he is charged with Bribery.

Now, in order to prove bribery, the State is not required to prove that payment was in exchange for any particular action by the Prince George’s County employee; rather it is sufficient for the State to prove that payments were demanded or received with the intent to influence the conduct of the employee in relationship to his employment or duty. ¹⁷¹ (Emphasis added). The trial court then instructed the jury as to the charge of conspiracy to commit theft by deception and explained the elements of a conspiracy. At the end of that particular charge to the jury, the trial court promulgated the challenged instruction: Now, in order for the State to prove a conspiracy, it is not necessary that a formal agreement be shown or that the conspiracy agreement as [sic] manifested by formal words either written or spoken. An agreement exists if the parties to a conspiracy passively come to an understanding by words or actions with regard to an unlawful act or purpose.

It is not a defense to the crime of bribery that the public employee did not have the actual authority, power, or ability to perform the act for which the money was demanded or received. (Emphasis added). We hold that, read in their entirety, the jury instructions fairly conveyed Maryland law on bribery. “[W]hen objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole.” Smith, 403 Md. at 666 , 944 A.2d 505 (quoting State v. Foster, 263 Md. 388, 397 , 283 A.2d 411 (1971)). The jurors here were instructed that, to convict appellant of bribery, the State was required to prove, beyond a reasonable doubt, that (1) appellant was an officer or employee of Prince George’s County, (2) appellant corruptly demanded or received, directly or indirectly, something of value from another and (3) this thing of value was demanded or received for the purpose of influencing the appellant in the performance of his official duties.

The challenged “lack of authority” instruction must be read in that context. As explained supra, even if a particular act is technically beyond a public employee’s authority, it is enough that the public employee accepted a bribe to influence a matter to which the public employee bears some official relation. See Kable, 17 Md.App. at 22 , 299 A.2d 493 . The jury was fully informed that if, for whatever reason, it had reasonable doubt as to whether the State had proven that the ¹⁷² proscribed act was within the general scope of appellant’s “official duties,” it was required to acquit appellant of that charge.

Any testimony establishing that appellant lacked authority to award contracts on the part of the County was part of the body of evidence the jury was entitled to weigh and consider in determining whether the elements of bribery had, in fact, been established by the State beyond a reasonable doubt. Appellant further argues that remarks by the State during closing argument, 4 when coupled with the challenged bribery instruction, allowed the jury to believe that it could convict appellant of bribery “even if he was unable to influence the awarding of the contract because he either lacked the power or ability to do so or because the decision to award the contract had already been made before he demanded and received a bribe from ISI.” Given the foregoing, such a conclusion by the jury would, in fact, be consistent with the law, as long as it found appellant to have accepted or demanded the bribe for the purposes of influencing him in the performance of his official duties. Appellant does not contest that he was an official member of the PAG, which was tasked with reviewing proposals by vendors in order to make an ultimate recommendation as to the final awarding of the contract. Finally, we reject appellant’s