Acquah v. State

• Decision Date: 26 December 1996
• Docket Number: No. 261,S,261
• Citation: 686 A.2d 690,113 Md.App. 29
• Parties: Sabina E. ACQUAH v. STATE of Maryland. ept. Term 1996.
• Court: Court of Special Appeals of Maryland

Page 29

113 Md.App. 29

686 A.2d 690

Sabina E. ACQUAH v. STATE of Maryland.

No. 261, Sept. Term 1996.

Court of Special Appeals of Maryland.

Dec. 26, 1996.

M. Albert Figinski (Weinberg and Green LLC, on the brief), Baltimore, for Appellant

Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Carolyn J. McElroy and Timothy U. Sharpe, Assistant Attorneys General, on the brief), Baltimore, for Appellee.

Argued before CATHELL, DAVIS and HARRELL, JJ.

HARRELL, Judge.

Appellant, Sabina Evelyn Acquah (Acquah), was indicted on two criminal conspiracy counts. One count charged Acquah with conspiracy ¹ to bribe state employees under Md. Ann.Code art. 27, § 22 ² (hereinafter referred to as "the bribery count"). The second count charged Acquah with conspiracy to gain illegally access to personal records by false pretenses, bribery, or theft (hereinafter referred to as "the personal record count"). ³ Acquah was acquitted by a jury sitting in the Circuit Court for Baltimore City (Hammerman, J., presiding) on the bribery count but convicted on the personal record count. She appeals her conviction on several fronts. We shall affirm.

FACTS

This case evolved out of the apparently frenzied market for inclusion of Maryland's Medicaid recipients in managed care programs, particularly health maintenance organizations ⁴ Chesapeake Health Plan (CHP) is an HMO operating in Maryland. Acquah became an employee of CHP in 1988 and, at some point thereafter, became the Medicaid Marketing Manager. During the alleged conspiracy, she had supervisory responsibility for all CHP employees marketing services to Medicaid recipients. The issue addressed below was whether Acquah conspired to obtain illegally the HEO1's from State employees in order to enhance the performance of the Medicaid Marketing Department at CHP.

(HMO's). Without mandatory enrollment legislation allowing access to potential client information, the private entities were often perplexed as to how to enroll Medicaid recipients without access to State-controlled listings. The State, we presume unintentionally, created a lucrative market without providing an efficient, yet legal, means of finding members of that market. Although the State desired that private companies enroll its Medicaid recipients, it did not provide access to recipient records. The Department of Health and Mental Hygiene (DHMH) maintains the recipient information on internal forms known as HEO1's. This potentially lucrative market, albeit one created by the State, spawned an environment that included bribery of DHMH employees to release HEO1's as a means to obtain "leads" on possible clientele. This use of the HEO1's by certain HMO marketing representatives led to the Medicaid Fraud Control Unit (MFCU) investigations that, in turn, led to the indictment of Acquah.

Acquah's subordinates worked out of two offices, one in Baltimore City and another in Prince George's County. The representatives were required to report in the morning to their assigned office, venture into the marketing thicket to enroll Medicaid recipients, and return to the office shortly before the end of the work day. Acquah managed her employees through direct contact and by addressing them at bi-weekly meetings.

The MFCU obtained a subpoena duces tecum directed to the Custodian of Records at CHP. On 15 March 1995, after an attempt to serve CHP's general counsel, a MFCU investigator served the subpoena on Acquah. Among the many documents requested were HEO1's. Officers of CHP and Acquah both testified that before service of the subpoena they had no knowledge of the existence or significance of HEO1's. It was later demonstrated at trial that HEO1's were single sheets of paper, maintained by DHMH, that contained personal information about individual Medicaid recipients. The face of an HEO1 does not proclaim its confidentiality and numerous witnesses at trial denied knowledge of its confidential status.

CHP, and its counsel, conducted a search of the Medicaid Marketing Department's offices and discovered HEO1's in approximately one-third of the representatives' cubicles. CHP followed up the search with interrogations of the representatives and supervisors. A number of these individuals were ultimately summoned by the grand jury and admitted to using HEO1's. Most of these persons were fired. Acquah was interrogated separately and denied knowing that HEO1's were used at CHP. She also denied ever distributing HEO1's.

Acquah was later indicted on the two conspiracy counts that were the subject of the trial below. The State alleged that Acquah was part of an ongoing conspiracy to obtain the HEO1's from state employees. Apparently four representatives illegally obtained the HEO1's, although only one admitted actually to paying State employees to obtain them. The State never alleged that Acquah personally bribed its employees or directly took part in any substantive crime. She was charged strictly as a co-conspirator. After her indictment, CHP placed Acquah on unpaid leave.

Acquah's trial encompassed six days. The testimony received indicated that several former employees had observed use of HEO1's at CHP. They testified that Acquah, at the bi-weekly meetings, instructed her staff concerning concealing "leads" in order to keep potential enrollees from discovering that the representatives had confidential information. One Q. And do you recall in any of these meetings Sabina Acquah saying anything about HEO-1 screens?

exchange between the prosecutor and a witness occurred as follows:

A. The only thing I ever heard her say is they [were] getting [a lot] of complaints of how marketing reps knew all this information on people, and they, you know, how did they get these informations (sic). And there was a couple of times that she said in a meeting that if you are using these things, leave them in your cars. Don't take them in those people's houses. You maybe can copy them but they are never to see the papers, do something, but do not take them into people's office (sic).

Q. When Sabina Acquah said this, you used the words, these things; do you recall what words she used?

A. HEO-1, leads, either/or.

THE COURT: HEO-1's or what?

A. Or leads.

THE COURT: Leads.

Q. At Chesapeake in the Medicaid Marketing Department what things were referred to as leads?

A. HEO-1's, a call in, if someone called in inquiring about a plan, if someone was disenrolled or lost eligibility, you know, if that is a plan they already owned, you can go back out and try to resell them the plan.

Q. Did anyone ever tell you to take the--not to take the referral from another marketing representative into someone's house?

A. Not unless they, if another marketing representative gave you a HEO-1, don't take that in.

Other witnesses testified that Acquah told them not to go into the enrollees' homes with the leads.

Other testimony indicated that Acquah told at least one marketing representative to get some of "those things going around". Her alleged co-conspirator testified that his request of Acquah for reimbursement for the purchase of HEO1's was Acquah did refute these witnesses with her own testimony and that of other witnesses. Acquah testified that legitimate "leads" came into the hands of her representatives and that these are the "things" she warned against taking into the enrollees' homes. Acquah's supervisor testified he believed that Acquah did not know the HEO1's were being used in the department.

denied. She also apparently vowed to deny knowledge of the HEO1's if they were uncovered. Yet another representative testified that Acquah gave out HEO1's with a gesture that indicated, at least to that representative, that Acquah knew her actions were wrong. Additionally, the record is full of testimony that demonstrates that Acquah knew of the illegal conduct occurring in her department and failed to take decisive action to stop it.

ISSUES

I. Did the jury's acquittal on the bribery count dictate acquittal on the personal records count thereby requiring reversal?

II. Did the State present evidence sufficient to convict Acquah on the personal records count?

III. Did the trial court's instructions to the jury regarding the law of conspiracy constitute reversible error?

IV. Should the trial court's determination that the jury selection process was properly conducted be upheld?

V. Did the trial judge act improperly so as to deny Acquah a fair trial?

I.

Before considering the merits of Acquah's first argument, we note that this issue has not been preserved for appeal. When a defendant contends that a jury's verdicts are inconsistent or improper, he or she must raise the issue at trial. See Bell v. State, 220 Md. 75, 81, 150 A.2d 908 (1959); Cross v. State, 36 Md.App. 502, 506, 374 A.2d 620 (1977), rev'd on other grounds, 282 Md. 468, 386 A.2d 757 (1978); see also Hawkins v. State, 87 Md.App. 195, 589 A.2d 524, rev'd on other grounds, 326 Md. 270, 604 A.2d 489 (allowing appeal absent objection at trial because the defendant was convicted on both counts and was sentenced on both). Under Md. Rule 4-323 and Md. Rule 8-131, this Court will not decide issues unless they plainly appear to have been decided below. Because appellant did not raise the issue of an inconsistent jury verdict below, we are not required to decide it now. We shall, however, decide that, even if the issue had been preserved for appeal, the jury's verdicts were not inconsistent.

Acquah essentially argues that the jury's acquittal on the bribery count necessarily dictates acquittal on the personal records count. First, she asserts that because she can only be tried for one conspiracy, the acquittal on the first conspiracy count precludes any subsequent conspiracy conviction. She further contends that the elements for conspiracy to bribe are also essential to the personal records count, and, therefore, the acquittal on the first count eviscerated the second. Her argument,...