Thomas v. State

ADKINS, Judge. Petitioner Robert L. Thomas was charged with bribery, conspiracy to commit bribery, and conspiracy to commit theft by deception for his role in an alleged bid-rigging scheme relating to the award of a local government security contract. Thomas was tried in the Circuit Court for Prince George’s County (the “County”), and convicted on both bribery counts. On appeal, Thomas presents two questions for consideration: 1.

Did the trial court err in instructing the jury that 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 payment was demanded or received? 2. Did the trial court err by allowing a witness for the State to testify to his opinion regarding [Thomas’s] role in the alleged bribery scheme? ²⁵¹ Because Thomas’s solicitation of a bribe was for an act reasonably related to his official capacity, and because the challenged testimony was relevant to the charge of conspiracy to commit theft by deception, we affirm Thomas’s convictions. FACTS AND LEGAL PROCEEDINGS During the events giving rise to this case, Thomas was the Deputy Director of the Prince George’s County Office of Central Services (“OCS”). In this capacity, he was responsible for managing the County’s vehicle fleet and facilities.

He was not responsible for procurement of goods and services, which were the responsibilities of another Deputy Director, Floyd Holt. In June 2003, the County invited contractor bids for the installation of a security management system in two County buildings. The invitation to bid included a notice that the County would consider expanding the contract to cover some one hundred forty additional buildings if funding so permitted. Forney Enterprises provided the lowest bid, on June 2, 2003.

The next day, however, a new Director, Pamela Piper, was appointed to head OCS, and she retracted the invitation for bids shortly thereafter. In February 2004, OCS issued a request for proposals to fulfill the security contract, and appointed a five-person proposal analysis group to review submitted proposals and recommend a selection. Any recommendation made by the group still required Piper’s approval in order to take effect. On July 15, 2004, the group unanimously recommended that Forney Enterprises again be awarded the contract.

The recommendation was rejected, however, after Thomas alerted Piper to a possible business relationship between Forney Enterprises and one of the group members, Corporal Keith Washington. Piper then directed interested vendors to give oral presentations on their proposals, and restructured the group, replacing two of its members with Thomas and Holt. On September 29, ADT/Tyco, the company that would ultimately receive the group’s recommendation, gave its presentation. That presentation was attended by Melvin Pulley and ²⁵² Dallas Evans, respectively the Director of Telecommunications and President of Interior Systems, Inc. (“ISI”), which would act as a subcontractor on the project.

Thomas did not attend that presentation. Following what they believed to be a successful presentation, Pulley, Evans, and others went to celebrate at a restaurant. According to Pulley, he there encountered Robert Isom, a “social Mend” of his who was at the time working for the County. Isom offered to introduce Pulley to Thomas, whom he suggested “could help [ISI] win the contract.” Pulley followed Isom to another restaurant, where they met Thomas.

According to Pulley, Thomas told Pulley that he “knew all about ISI and the contract” and that “everyone on their committee worked for [Thomas]____” Pulley and Thomas discussed ISI; the next day, Isom contacted Pulley, saying that Thomas “wants to know if ISI and ADT will play.” 1 Pulley replied in the affirmative, “as long as ISI knows what the game is.” On October 1, Isom called Pulley to arrange a lunch meeting between Thomas and Pulley. Thomas and Isom went to the same restaurant that had been the site of ISI’s initial celebration, and waited for Pulley. Before Pulley arrived, Thomas told Isom that they would ask ISI for $250,000. When Pulley arrived, he met briefly with Thomas, who then directed him to Isom’s table.

Isom gave Pulley a piece of paper stating that Thomas could guarantee ISI the contract for $250,000, with half to be paid up front and half to be paid when the contract was awarded. The note also said that Thomas would then issue “change orders” so that ISI could recoup its expenses and be able to work on the additional one hundred forty buildings that might eventually be covered by ²⁵³ the contract. After leaving the restaurant, Pulley reported the events of the meeting to Evans. On October 4, Pulley and Evans spoke to ISPs Chief Operating Officer, William Marcel-lino, as well as to ISPs counsel and vice-president.

The group collectively decided to notify the authorities. On October 6, Special Agent John Poliks of the Office of the State Prosecutor was assigned to investigate the case. The next day, Poliks met with Pulley, who allowed Poliks to copy a voicemail that had been left on Pulley’s phone by Isom. The message contained directions from Isom for Pulley to contact him to set up a meeting with Thomas.

In Poliks’s presence, Pulley called Isom, to say that he had spoken with Evans, who felt that the “amount’s a little steep.” Isom replied that it was “no problem” and that “we just need to ... get them together.” On October 14, Pulley allowed Poliks access to five new voicemails from Isom, which included a phone number for “the other Bob[,]” presumably meaning Thomas. That same day, Evans called Thomas in Poliks’s presence, saying that he was “trying to understand exactly what the deal is.” Thomas replied that he “[didn’t] want to talk about it on the phone.... ” Evans asked Thomas to clarify “what consideration [ISI would] be getting[,]” to which Thomas replied in part that “there’s 144 buildings ... [to] add security to,” and that he was “going to make the decision” and then going to send a letter of intent to award. Later in the day, Evans called Isom, who told Evans that “what we’re talking about” could be completed in twelve months. Isom added that “we understand that [the payment amount was] kind of steep ... but [Thomas] just wanted to get assurance from you.” Isom further added that Thomas wanted “to assure [Evans] that he’s going to take you on your word[,]” and that ISI should “go ahead on and sign and you’ll know the job’s out there for contractor [sic].” Finally, Isom stated that he needed Evans’s commitment because Thomas had to “make a decision today____” Under Poliks’s direction, Isom and Pulley met at a Washington D.C. restaurant on October 19.

The meeting was ²⁵⁴ surveilled by Poliks and Special Agent Rick Barger. At the meeting, Isom gave Pulley an envelope containing a draft “consulting agreement,” and told Pulley that once the agreement was signed, Thomas would award the security contract to ADT/Tyco. The agreement called for ISI to retain Washington Business Management Consulting Group, LLC (‘WCG”) for a total fee of $260,000, payable in monthly installments. WCG was a consulting company belonging to Paul Wright, who had prepared the consulting agreement.

Wright testified at Thomas’s trial that Thomas had contacted him in October 2004 with an eye towards jointly pursuing consulting opportunities, but that he had never heard of ISI prior to these events, and that he never thought the consulting agreement was illegal. 2 Pulley returned a “marked-up” copy of the consulting agreement to Thomas at the restaurant where the two had initially met. Thomas took the envelope without opening it, and told Pulley that “he was going to award the contract the next day to ADT and ISI.” The contract was not in fact awarded the next day, though Thomas returned the signed agreement to Wright shortly after receiving it. When the contract was not awarded, Poliks directed Pulley to arrange a meeting, through Isom, between Thomas, Pulley, and William Marcellino. The meeting was set for November 1.

Prior to the meeting, the Federal Bureau of Investigation supplied Marcellino with a check for $10,000, doctored to look like an ISI check. Thomas called Wright before the meeting, however, to say that he would not attend. Instead, Marcellino met with Isom and Wright (who had by then signed the consulting agreement himself). At the meeting, Marcellino gave Wright the check as an initial payment on the consulting agreement.

Isom told ²⁵⁵ Pulley and Marcellino that Thomas was “going to release the contract that day” and follow with change orders thereafter. Despite Isom’s assurances, the contract was not awarded to ADT/Tyco that day. During this period, the proposal analysis group did unanimously recommend that the security contract be awarded to ADT/Tyco, with ISI as a subcontractor on the project. The group notified Piper of its recommendation during November 2004.

Poliks again asked Marcellino to arrange a meeting with Thomas, which Thomas again did not attend. That meeting, on December 6, was attended by Wright at Thomas’s request. Wright gave Marcellino a copy of a recommendation memorandum from Piper to Corporal Washington, indicating that Piper had accepted the group’s recommendation to award the contract to ADT/Tyco. In January 2005, Poliks made an unsuccessful attempt to meet with Wright while posing as a project manager for ISI.

Wright testified that around this time he ended his business relationship with Thomas for a number of reasons. Also in January, Isom told Pulley that he was “no longer part of this mess [Thomas] was doing [sic].” On May 24, 2005, Poliks and Barger executed search warrants for the homes and offices of Thomas, Isom, and Wright. Numerous documents relating to WCG and the consulting agreement were seized from Wright’s house. Thomas, for his part, stated during the search that he had no capacity to affect bidding on contracts in the County.

He also denied that he had taken the “marked-up” consulting agreement from Pulley, though he admitted to doing paid accounting work for WCG. The seized documents showed that Wright had opened a business account on WCG’s name on November 3, 2004, and had deposited the $10,000 check into that account. Both Thomas and Wright made withdrawals from that account, and Wright testified that he gave some or all of his withdrawals to Thomas. Thomas was tried in the Circuit Court for Prince George’s County, in August 2006, on charges of bribery, conspiracy to commit bribery, and conspiracy to commit theft by deception. ²⁵⁶ During trial, and over defense objections, Evans testified that at the time of his October 14 phone call to Thomas, he believed that Thomas had the authority to influence the awarding of contracts for the County. 3 Prior to deliberations, the jury received instructions on bribery, including the following statement: 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.

Thomas was convicted on charges of bribery and conspiracy to commit bribery, and acquitted on charges of conspiracy to commit theft by deception. On May 11, 2007, Thomas was sentenced to twelve years in prison with all but thirty months suspended in favor of five years of supervised probation. He was also ordered to pay $10,000 restitution. Thomas appealed the verdict on the grounds that the trial court erred in instructing the jury that Thomas’s lack of actual authority to award the contract was not a defense to bribery, and that the trial court erred in allowing Evans to testify as to his belief in Thomas’s actual authority to award the contract.

Thomas v. State, 183 Md.App. 152, 166, 173 , 960 A.2d 666, 674, 678 (2008). The Court of Special Appeals affirmed the judgment of the trial court on both grounds, holding that the trial court’s jury instructions “fairly conveyed Maryland law on bribery.” Id. at 171 , 960 A.2d at 677 . The intermediate appellate court further held that even if Evans’s testimony was improper, Thomas suffered no harm or prejudice as a result of the testimony. Id. at 173-74 , 960 A.2d at 678 .

We granted Thomas’s petition for a writ of certiorari to consider ²⁵⁷ both issues. Thomas v. State, 407 Md. 529 , 967 A.2d 182 (2009) (granting certiorari). DISCUSSION Thomas presents two issues for our consideration upon appeal. 4 We will discuss each argument in turn. The Jury Instruction On Bribery Thomas argues that the trial court erred in instructing the jury on bribery because the court stated that a defendant’s lack of actual authority to perform an act was not a defense to receiving or soliciting a bribe to commit that act.

We disagree. An appellate court, reviewing jury instructions, will leave the judgment undisturbed so long as the instructions fairly cover the law. Smith v. State, 403 Md. 659, 663 , 944 A.2d 505, 507 (2008). We will reverse a judgment and remand for a new trial, however, where the instructions are “ambiguous, misleading, or confusing” to jurors.

See Battle v. State, 287 Md. 675, 684-85 , 414 A.2d 1266, 1271 (1980). In this case, our determination as to whether the instruction on bribery “fairly covered the law” requires interpretation of Section 9-201(c) of the Criminal Law Article (“C.L.”), which reads as follows: A public employee may not demand or receive a bribe, fee, reward, or testimonial to: (1) influence the performance of the official duties of the public employee; or ²⁵⁸ (2) neglect or fail to perform the official duties of the public employee. See Md.Code (2002, 2008 Supp.) § 9-201(c) of the Criminal Law Article. 5 The statute does not discuss the connection between an employee’s actual authority and the act for which the employee was bribed. Instead, the statute refers only to the employee’s “official duties.” In this' case, therefore, we must determine if the act for which Thomas solicited a bribe, though outside of his actual authority, was sufficiently related to the performance of his official duties so as to be encompassed by the statute.

Although this question is one of first impression for this Court, the Court of Special Appeals has twice before the present case held that a public employee need not have actual authority to act in a particular capacity in order to be guilty of soliciting a bribe in relation to that act. See Richardson v. State, 63 Md.App. 324, 331-33 , 492 A.2d 932, 936-37 (1985); Kable v. State, 17 Md.App. 16, 22 , 299 A.2d 493, 497 (1973). In Kable , for example, that court held that it was bribery for “a public official [to accept money] to act corruptly in a matter to which he bears some official relation.... ” Id. (quotation marks and citation omitted).

Likewise, several of our sister states, without explicit legislative commands on this issue, have consistently held that a public employee acting within her official capacity need not have authority to complete a specific act in order to be convicted of soliciting a bribe in connection with that act. 6 ²⁵⁹ The Supreme Court of Arizona clearly stated the rationale for interpreting bribery statutes to encompass those activities within a broad definition of an employee’s official duties: The reason for making it an offense to bribe a public officer is because of its tendency to pervert justice.... An officer’s