Cicoria v. State, 159

Decision Date01 September 1991
Docket NumberNo. 159,159
Citation332 Md. 21,629 A.2d 742
PartiesAnthony CICORIA v. STATE of Maryland. ,
CourtMaryland Court of Appeals

William C. Brennan, Jr. (Knight, Manzi, Brennan, Ostrom & Ham, on brief), Upper Marlboro, for petitioner.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr. Atty. Gen., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

We granted certiorari to decide whether, under the Maryland Theft Statute, Maryland Code (1957, 1992 Repl.Vol.) Art. 27, §§ 340 et seq., a candidate for public office may be convicted of theft and conspiracy to commit theft when the funds alleged to have been stolen and which are the subject of the conspiracy, are those contributed to the candidate's campaign political committee. When the Court of Special Appeals considered the issue, it answered in the affirmative. Cicoria v. State, 89 Md.App. 403, 598 A.2d 771 (1991). We shall do likewise.

I.

Anthony Cicoria ("Cicoria"), the petitioner, was a county councilman representing the Second District of Prince George's County. His candidacy was promoted by an authorized campaign political committee, Citizens for Cicoria ("CFC"). See Maryland Code (1957, 1990 Repl.Vol.) Art. 33, § 1-1(a)(1). 1 CFC was also a continuing campaign political committee. See 63 Op. Att'y Gen. 273, 274-77 (1978).

Cicoria and his wife, Catherine, were indicted in March, 1990. As relevant to the case sub judice, the indictment alleged that the Cicorias 2 stole and conspired to steal, more than $64,000 from CFC. 3 He was tried and convicted by a jury in the Circuit Court for Prince George's County and sentenced to concurrent ten years terms of imprisonment, all but five years suspended, in lieu of, upon release, five years probation and restitution.

The evidence adduced at trial tended to prove that, for five years, beginning in 1984, Cicoria and his wife, who became chairman of CFC in 1986, engaged in a continuing course of conduct, contrary to both the State election laws, see art. 33, in particular, §§ 26-1 to 26-21 (the "Fair Election Practices Act"), and the theft statute, to steal money from Cicoria's election campaign committee. In one scheme, Cicoria was reimbursed by CFC for a $2300 loan he purportedly made to the committee. Although he signed a campaign report which represented that he made such a loan, Cicoria never actually made a loan in that amount. While CFC did receive $2300, it was received in the form of small contributions by specific donors, which were never reported as such. Rather, the campaign fund reports noted a loan made to CFC, when in fact the actual campaign contributions were deposited into one of the Cicorias' personal bank accounts. At first glance, the unlisted contributions "passed" as a loan because Cicoria would then draw a check on his personal account and also make himself the payee. Cicoria would then reimburse himself for the "loan" using other campaign contributions. In addition, Cicoria was reimbursed in excess of the amount he actually loaned the campaign committee.

A second scheme Cicoria used to obtain campaign funds involved his purchase of a facility to be used for his headquarters. The evidence showed that Cicoria, his wife, and his mother purchased a unit in the Prince George's Plaza Professional Park, which he used for his headquarters. The loan documents characterized the purchase as a personal investment. Nevertheless, CFC paid more than $30,000 towards the purchase price and made some of the mortgage payments, as well. Cicoria deducted the interest paid in respect of that purchase from his personal income taxes.

In yet another scheme, contributions to CFC were not deposited in the campaign fund account required by the Election Code. The State adduced evidence that campaign contribution checks made payable to CFC were deposited in an account maintained by Mrs. Cicoria, which, according to the custodian of records for the bank, was a joint personal account with Anthony Cicoria. The funds deposited in that account were required by the Fair Election Practices Act, art. 33, § 26-5, to be deposited in an account established by CFC for the deposit of campaign contributions.

Finally, testimony showed that Catherine Cicoria acting as chairperson, 4 purported to pay campaign related expenses when, in fact, "the payments" were deposited to the alleged personal accounts of the Cicorias designated as "C. Cicoria" and "C.M. Cicoria." The campaign related expenses for which "payments" were made included, inter alia, advertising, postage, printing, and rent, which either were not incurred or for which false receipts were generated to justify the reimbursement to Cicoria.

II.

Cicoria does not challenge the sufficiency of the evidence to prove the schemes in which the State alleged he and his wife engaged. Rather than arguing that he did not take campaign funds from CFC, Cicoria asserts that those counts of the indictment charging theft and conspiracy to commit theft do not charge cognizable offenses. He reasons that one cannot steal from oneself: because the campaign contributions were made for his benefit and use, unless it is alleged that he used them for a purpose inconsistent with that use and benefit, no crime has been committed. As the petitioner sees it, he either is the sole owner or a joint owner with CFC, of all campaign contributions, even those made directly to CFC. Assuming that the Fair Election Practices Act does prescribe who has an ownership interest in the campaign contributions and he is not one of the persons with such an interest, he argues that ownership is in the campaign treasurer, not CFC, as charged in the indictment. Consequently, the petitioner maintains that dismissal of those counts of the indictment charging theft and conspiracy to commit theft was required.

Finally, the petitioner argues that the Fair Election Practices Act, essentially a comprehensive disclosure scheme, prescribing penalties for violation, see, e.g., art. 33, §§ 26-16(b) 5 and 26-20, 6 precludes his prosecution under the theft statute. The petitioner finds support for this argument not only in the comprehensiveness of that portion of the Election Code, but in its ambiguity, as well. Cicoria argues:

Thus, all responsible authorities have consistently stated that the Election Code is a reporting or disclosure statute and that it is extremely ambiguous and lacking in clarity. The legislature could never have intended to apply a very specific criminal statute (The Theft Statute) to such a legal morass.

Petitioner's Brief at 32. Cicoria finds persuasive the fact that, unlike the way perjury is treated in the Fair Election Practices Act, see art. 33, § 26-15, 7 theft of campaign funds is not listed as a crime. Id.

III.

The theft statute prescribes five ways in which the crime of theft can be committed. Art. 27, § 342. Only two of them, id. at § 342(a) 8 and § 342(b) 9, have relevance to the case sub judice. Those sections proscribe the obtention or exertion of unauthorized control, id. at § 342(a), or the obtention of control by deception, id. at § 342(b), "over the property of the owner," with the intent to deprive the owner of the property. The ultimate use to be made of the property is not an element of the crime.

An "owner" is defined as

[a] person, other than the offender, who has possession of or any other interest in the property involved, even though that interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.

Id. at § 340(g). In addition to having possession under the theft statute, the owner must be a person. Although "person" is not a defined term under the theft statute, it is clear that the use of that term does not mean that the owner must be a natural person; for purposes of the theft statute, "person" has been interpreted expansively, as including individuals, Kimbrough v. Giant Food, Inc., 26 Md.App. 640, 339 A.2d 688 (1975); corporations, Melia v. State, 5 Md.App. 354, 247 A.2d 554 (1968); and financial institutions. Pearlstein v. State, 76 Md.App. 507, 547 A.2d 645 (1988). CFC, a political committee, i.e., two or more persons formed to promote the success of Cicoria's candidacy, art. 33, § 1-1(a)(14), 10 is a "person" for purposes of the ownership provision of the theft statute. 11

Article 27, section 340(f) defines "obtain" to mean, "[i]n relation to property, to bring about a transfer of interest or possession, whether to the offender or to another...." One "exerts control" when he or she "tak[es], carr[ies] away, appropriat[es] to one's own use or sale, conveyance, transfer of title to, interest in, or possession of property." § 340(d). Section 340(i) defines "property of another" as "real or personal property in which a person other than the offender has an interest which the offender does not have authority to defeat or impair, even though the offender himself may have an interest in the property." See also Art. 27, § 343(a). 12 These definitions make clear that theft can be committed by effecting a transfer in possession only. A thief may have an interest in the property taken so long as that interest is not, under the circumstances, superior to that of the possessor.

Whether or not a defendant has an interest sufficient to entitle him or her to possession of the property, and, hence, avoid a prosecution for theft, must depend upon the circumstances. In this case, those circumstances include the requirement of those provisions of the Election Code that prescribe how campaign funds are to be collected, kept and disbursed, and allocate responsibility in that regard. Whether the candidate has a right to possess campaign funds must necessarily depend upon whether there has been compliance with those provisions.

IV.
A.

As Cicoria correctly observes, no where in...

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