Silbert v. State, s. 217

Citation12 Md.App. 516,280 A.2d 55
Decision Date03 August 1971
Docket Number297-301,Nos. 217,s. 217
PartiesFred SILBERT et al. v. STATE of Maryland. Philip SILBERT v. STATE of Maryland. Philip SILBERT et al. v. STATE of Maryland. Maurice SILBERT v. STATE of Maryland. William SHRECK v. STATE of Maryland. Philip P. SILBERT v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

No appearance for Maurice Silbert.

Robert F. Freeze, Baltimore, for William Shreck.

E. Thomas Maxwell, Jr., Baltimore, and Lawrence F. O'Donnell, Boston, Mass. (with Harold I. Glaser, Baltimore, on brief for Maurice Silbert), for Philip P. Silbert.

Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Robert C. Ozer, Asst. State's Atty., Baltimore, for Baltimore City on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and POWERS, JJ.

MURPHY, Chief Judge.

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:

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.

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, 88 S.Ct. 697, 19 L.Ed.2d 889, and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, 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, D.C., 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, 86 S.Ct. 1840, 16 L.Ed.2d 973, 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.

Extended pretial 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 Cotober 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 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, 251, A.2d 230, 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, 86 S.Ct. 1840, 16 L.Ed.2d 973; Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. Thus, the policy favoring grand jury secrecy has not been abandoned; it remains firm except that in some circumstances 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, 115 A.2d 262; Coblentz v. State, 164 Md. 558, 166 A. 45; In Re Report of Grand Jury, 152 Md. 616, 137 A. 370. 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...

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    ...State v. Cugliata, 372 A.2d 1019, 1025 (Me.), cert. denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977); Silbert v. State, 12 Md.App. 516, 523-24, 280 A.2d 55 (1971); People v. Wimberly, 384 Mich. 62, 69, 179 N.W.2d 623 (1970); State v. Damiano, 124 N.H. 742, 749, 474 A.2d 1045 (1984)......
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