Special Investigation No. 224, In re, 202

• Decision Date: 07 April 1983
• Docket Number: No. 202,202
• Citation: 54 Md.App. 137,458 A.2d 454
• Parties: In re a SPECIAL INVESTIGATION # 224.
• Court: Court of Special Appeals of Maryland

Page 137

54 Md.App. 137

458 A.2d 454

In re a SPECIAL INVESTIGATION # 224.

No. 202.

Court of Special Appeals of Maryland.

April 7, 1983.

Deborah K. Handel, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Stefan D. Cassella, Asst. Atty. Gen., on the brief, for appellant.

Albert H. Turkus, with whom were Dow, Lohnes & Albertson, Washington, D.C., Alan J. Goldstein, Horowitz, Oneglia, Goldstein, Foran & Parker, P.A., Grunbelt, David R. Addis, Dickstein, Shapiro & Morin, Washington, D.C., Joshua R. Treem and Schulman & Treem, Baltimore, on the brief, for appellees.

Argued before MOYLAN, LOWE and ADKINS, JJ.

MOYLAN, Judge.

The message is clear and the model has been well described:

"Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws."

The Supreme Court spoke those words in 1973 in United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67, 81. One year later, United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561, 568-569 (1974), was equally emphatic about the independence of the grand jury:

"Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. 'It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.' "

The Supreme Court has consistently recognized that the grand jury's function should not, except in the most extreme circumstances, be interrupted, interfered with, or monitored too closely. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). Drawing sustenance from the same English common law tradition, Maryland has extended the same deference to the essentially unfettered functioning of the grand jury. Bartram v. State, 280 Md. 616, 374 A.2d 1144 (1977); Bernard v. Warden, 187 Md. 273, 49 A.2d 737 (1946); In Re Report of Grand Jury, 152 Md. 616, 137 A. 370 (1927); Pick v. State, 143 Md. 192, 121 A. 918 (1923); Hooker v. State, 98 Md. 145, 56 A. 390 (1903); Owens v. Owens, 81 Md. 518, 32 A. 247 (1895); Blaney v. State, 74 Md. 153, 21 A. 547 (1891).

Notwithstanding this clear message, the effort of the Attorney General to root out fraud in the medical assistance program of the State of Maryland has been thwarted, sidetracked, frustrated, and delayed by an exasperating, though talented, "full court press." On this occasion, the war on crime has encountered a "scorched earth" defense that has made the Attorney General pay dearly, in time and resources, for every inch that has grudgingly been yielded. While it would be pleasing to report that today's holding gets the investigation back on track and repairs the damage, that is regrettably probably not the case. It is more probably the case that the ingenious obstructionism that has led to this appeal; companion cases decided today, In Re: Special Investigation No. 228, 54 Md.App. 149, 458 A.2d 820 (1983) and In Re: Special Investigation No. 237, 54 Md.App. 201, 458 A.2d 450 (1983); In Re: Special Investigation No. 236, 295 Md. 573, 458 A.2d 75 (1983); In Re: Special Investigation No. 229, 295 Md. 584, 458 A.2d 80 (1983); In Re Special Investigation No. 195, 295 Md. 276, 454 A.2d 843 (1983); In Re: Special Investigation No. 242, 53 Md.App. 360, 452 A.2d 1319 (1982); In Re: Special Investigation No. 202, 53 Md.App. 96, 452 A.2d 458 (1982), has accomplished everything that it realistically set out to accomplish--a year's delay. Hopefully, a series of firm holdings will at least help to foreclose future resort to such diversionary stratagems. The grand jury does not have to run an obstacle course.

The general background to this investigation has been well summarized by Judge Marvin Smith for the Court of Appeals in In Re: Special Investigation No. 195, 295 Md. 276, 454 A.2d 843 (1983):

"On December 20, 1978, pursuant to the provisions of Maryland Constitution Art. V, § 3, Acting Governor Blair Lee, III, authorized and directed the Attorney General of Maryland to investigate, among other things, 'the administration of medical assistance under the State's Medicaid Program,' with power 'to present to any grand jury which may have jurisdiction over the matter any evidence and testimony that [the Attorney General might] consider necessary and appropriate to carry out this authorization and directive.' The letter specified that if criminal charges were brought the Attorney General was 'authorized to prosecute in any courts of this State such violations of the law as [might be] disclosed by the investigation with the full powers and authorities possessed by a State's Attorney.' On November 21, 1979, Governor Harry Hughes issued a similar letter. Pursuant to that authority the Attorney General has created what he calls 'the Medicaid Fraud Control Unit' of his office." (Brackets in original.)

In August, 1981, that newly created Medicaid Fraud Control Unit began an investigation of large-scale fraud on the part of a closely related hospital and nursing home (collectively, the Hospital) in Prince George's County, and of its owners, administrators, and employees. On February 4, 1982, a search warrant was executed at the Hospital. As has been more fully described in the companion case of In Re: Special Investigation No. 228, 54 Md.App. 149, 458 A.2d 820 (1983), the administrators of the Hospital counsel, advance notice that the searching team was on the way. In a frantic twenty minutes, numerous employees of the Hospital grabbed box after box of records from the room where those records were kept and hastily loaded them onto a pickup truck and into a blue Cadillac, both of which got away from the scene a scant six minutes before the arrival of the searching team. The fruits of the validly issued search warrant were destined for the investigating grand jury sitting in Baltimore, which had been pursuing this investigation for six months.

In an effort to determine first whether there had indeed been an obstruction of justice--a deliberate concealment of incriminating documents sought by the grand jury--and independently as a continuing part of the ongoing effort to discover evidence of fraud in the operation of the Hospital, the investigating grand jury issued over the course of three days (February 9, February 11, and February 16, 1982) summonses to nineteen employees of the Hospital. These nineteen persons were summonsed before the grand jury as witnesses.

In addition, the grand jury issued two subpoenas duces tecum. One was to the Director of Communications of the Hospital for the telephone and public address system paging logs kept for the specific date of February 4, 1982. This obviously was intended to show the telephone messages that flashed back and forth during the hour preceding the search and also the call that went out over the public address system for a particular maintenance man quickly to join the team that was hauling away the records. The other subpoena duces tecum was to a Mrs. H, an employee of the Hospital, to produce the various books and records that had been "stashed" in her blue Cadillac and which had not been found in the subsequent search of an outbuilding located on her nearby property.

On February 22, a series of motions, from a number of lawyers, collectively moved to quash all of the summonses and subpoenas in this case. Oral argument, but no evidentiary hearing, was held before a judge of the Criminal Court of Baltimore on March 2. On March 8, an order was filed by the judge in that court directing that all of the summonses and subpoenas be quashed. This appeal has followed from that order.

In argument before that judge, and in brief and argument before us, counsel for the appellees have pointed out quite properly that what is involved is not a matter of venue, which involves simply the question of where the trial shall take place, State v. Jones, 51 Md.App. 321, 443 A.2d 967 (1982), but rather a matter of territorial jurisdiction, which goes to the very validity of the charging document, McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977). From the proper identification, however, of a possible future pretrial but post-indictment issue, counsel created a massive non sequitur. The hearing judge was bombarded, as we have been bombarded, with a barrage of references to Maryland case law. McBurney v. State, supra; State v. Jones, supra; Urciolo v. State, 272 Md. 607, 325 A.2d 878 (1974); Peddersen v. State, 223 Md. 329, 164 A.2d 539 (1960); Kisner v. State, 209 Md. 524, 122 A.2d 102 (1956); Guarnera v. State, 23 Md.App. 525, 328 A.2d 327 (1974); Stewart v. State, 21 Md.App. 346, 319 A.2d 621 (1974), aff'd, 275 Md. 258, 340 A.2d 290 (1975); and two bits of dicta from State v. Williams, 85 Md. 231, 36 A. 823 (1897), and Parrish v. State, 14 Md. 238 (1859). None of the cases, however, stands for the proposition for which they have all been cited as authority. Every one of those cases involved circumstances where an indictment had been filed. Every one of those cases, except State v. Jones, supra,...