Criminal proceeding and double jeopardy

Maryland Court of Special Appeals Reports

KHAN v. STATE, 115 Md. App. 636 (1997) 694 A.2d 485 AAMIR
ANIS KHAN AND AASIM ANIS KHAN v. STATE OF MARYLAND. No.
1436, September Term, 1996. Court of Special Appeals of
Maryland. May 30, 1997.

Appeal from the Circuit Court for Montgomery County,
Pincus, J. Page 637

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 638

Barry H. Helfand, Rockville, for appellants.

Debra S. Grimes, Assistant Attorney General (J. Joseph
Curran, Jr., Attorney General, Thomas K. Clancy, Assistant
Attorney General, Baltimore, and Robert Dean, State’s
Attorney for Montgomery County, Rockville, on the brief),
for appellee.

Argued before CATHELL and DAVIS, JJ., and THEODORE G.
BLOOM, (retired), Specially Assigned. Page 639

DAVIS, Judge.

Aamir Anis Khan and his brother Aasim Anis Khan filed a
Motion to Dismiss criminal indictments for several counts
of theft and conspiracy to commit theft in Montgomery
County. The trials were consolidated. Appellants argued in
the Circuit Court for Montgomery County that prosecution on
the indictments would place them in double jeopardy because
the indictments previously were used to enhance their
sentences for federal convictions in the District of
Columbia. The circuit court. (Pincus, J.) denied the Motion
to Dismiss on September 25, 1996, and appellants filed a
timely notice of appeal. They present one question for our
review, which we restate as follows:

Does the Double Jeopardy Clause of the Fifth Amendment or
the Due Process Clause of the Fourteenth Amendment bar the
State’s prosecution of an indictment after the State
presented evidence in a federal criminal proceeding as to
the existence of the indictment, and, although the
enhanced sentence resulting from the testimony of the
State’s representative was overturned on appeal,
appellants served more prison time than they would have
had the indictments not been used to enhance their
federal sentence?

To this novel question, we answer “no.” We affirm the
circuit court’s judgment.

FACTS

The facts of this case are relatively straightforward and,
to make matters easier, the State stipulated at the
motions hearing to most of appellants’ version of the
events leading to the Motion to Dismiss. Appellants were
arrested and indicted in Montgomery County on ten counts
each of theft and one count each of conspiracy to commit
theft. The indictments stemmed from appellants’ alleged
participation in a computer sales fraud scheme conducted in
Montgomery County while using the business name Integra
Computers (Integra).

Prior to the issuance of the State indictments, appellants
were indicted in the United States District Court for the
Page 640 District of Columbia for federal crimes that arose
from the same type of computer sales scheme, this time
conducted under the name National PC Liquidators
(NPCL).[fn1] They were convicted of those offenses in a
jury trial. During the subsequent sentencing hearing in the
district court, John Cady, an employee of the Montgomery
County State’s Attorney’s Office, testified for the United
States concerning the post-federal indictment issuance of
the State indictments for the Integra scheme. The district
court (June Green, J.) used the State indictments to depart
upward from the Federal Sentencing Guidelines (Guidelines)
for conviction under the NPCL scheme, reasoning as follows:

The Court finds . . . that there is sufficient evidence
that the defendants both engaged in substantially similar
criminal activity in Maryland and that the Court considers
a copy of the Indictment from the Circuit Court of
[Montgomery County] naming the defendants and alleging
that they engaged in similar criminal conduct on dates
following the indictment and while on bond in this case to
a matter of two items.

Accordingly, the Court finds that a three-level
enhancement pursuant to Sentencing Guidelines, Section
2J1.7, is warranted.

The court also imposed a “criminal history” level
enhancement of one.

Without the three-level enhancement, the offense level for
sentencing would have been twelve. With the enhancement,
the level was fifteen. This Court is, of course, not
shackled by the rigidly formulaic constrictions that the
Guidelines impose upon the federal district courts of this
country. According to the district court, however, the
sentence required by the Guidelines for an offense level of
fifteen, with a criminal Page 641 history enhancement of
one, is eighteen to twenty-four months. The court sentenced
appellants to incarceration for twenty-four months. With an
offense level of twelve and a criminal history enhancement
of one, the sentence under the Guidelines would have been
sixteen months.[fn2]

The district court’s use of the Integra indictments to
depart upwardly from the recommended offense level was
vacated on appeal to the United States Court of Appeals for
the District of Columbia Circuit. The Court of Appeals
noted that post-offense misconduct may justify an upward
departure in offense level if it shows extensive criminal
involvement, United States v. Khan, No. 95-3070, slip op.
at 2-3, 1996 WL 311458 (D.C.Cir. 1996) (citing United
States v. Fadayini, 28 F.3d 1236, 1242 (D.C.Cir. 1994)),
but said that a sentencing court must base its factual
findings on a preponderance of the evidence. Id. at 3. An
indictment for criminal conduct issues upon probable cause.
Id. Thus, the court concluded, the existence of the
indictment cannot alone support a finding of extensive
criminal involvement through post-offense misconduct. Id.
The court added that the indictment also could not be used
to enhance the federal sentence because it alleged no
specific criminal acts occurring after April 20, 1994, the
date of the indictment on federal charges. The circuit
court remanded to the district court for resentencing. Id.

Ordinarily, a decision to vacate a sentence and remand for
resentencing renders harmless any error committed during
the original sentencing hearing. This case is unusual,
however. Before the original sentencing hearing and while
the appeal on the sentence enhancement was pending,
appellants were incarcerated. The parties stipulated at the
hearing in the Montgomery County Circuit Court that, had
appellants been sentenced to incarceration for sixteen
months, they Page 642 would have been released on June 7,
1996 at the latest. In fact, because of the enhanced
sentence, and despite its voidance on appeal, they were not
released until July 5, 1996 — almost one month
later.[fn3] Thus, although the Court of Appeals negated on
the record the district court’s error, the erroneous
enhancement caused appellants to serve more time than they
would have served without the enhancement.

During the prosecution on the State charges following
their release, appellants filed the Motion to Dismiss that,
when denied, resulted in this appeal. At the hearing on the
motion, appellants argued that the State’s involvement in
the federal proceedings had caused appellants to serve more
time than they would have served if the State’s
representative had not voluntarily testified as to the
existence of the pending Integra indictments. Thus, argue
appellants, any subsequent prosecution under the State
indictments would place them in double jeopardy because the
State had effectively “prosecuted” the matters under
indictment in the federal proceeding by participating in
the federal sentencing, and this “prosecution” resulted in
punishment already served for the Integra indictments. To
prosecute the Integra indictments, appellants conclude,
would subject them to multiple punishments for the same
offense, a violation of the Double Jeopardy Clause of the
Fifth Amendment and the Due Process Clause of the
Fourteenth Amendment.

ANALYSIS

I

[1, 2] In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969), the Supreme Court outlined
three guarantees of the Double Jeopardy Clause of the Fifth
Amendment: Page 643

It protects against a second prosecution for the same
offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it
protects against multiple punishments for the same
offense.

Id. at 717, 89 S.Ct. at 2076.[fn4] This list is not
exhaustive, however; for example, the Double Jeopardy
Clause also collaterally estops the relitigation of facts
found in prior prosecutions. Whittlesey v. State, 340 Md.
30, 80, 665 A.2d 223 (1995) (Whittlesey II), cert. denied,
___ U.S. ___, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996).

[3] Separate sovereigns — in this case the federal
government and the State of Maryland — may prosecute
an accused under separate criminal offenses even if the
offenses are based upon the same conduct. United States v.
Wheeler, 435 U.S. 313, 316-17, 98 S.Ct. 1079, 1082-83, 55
L.Ed.2d 303 (1978); Gillis v. State, 333 Md. 69, 73, 633
A.2d 888 (1993), cert. denied, 511 U.S. 1039, 114 S.Ct.
1558, 128 L.Ed.2d 205 (1994). Appellants, recognizing this,
frame the sentence enhancement based upon a State
indictment and subsequent prosecution under the indictment
as multiple punishments for the same offense — the
violation of a Maryland criminal statute. Conflated with
this argument is an alternative argument that the State of
Maryland, by voluntarily testifying at the federal
sentencing hearing, effectively “prosecuted” the criminal
conduct during the sentencing hearing, and thus is barred
from prosecuting the Integra indictments.

The foregoing description of appellants’ claim illustrates
its nature as a square peg striving valiantly to wedge
itself into a Page 644 round hole. Appellants’ perception
of the nature of the federal sentencing proceeding was best
summed up by appellants’ counsel’s assessment of the
situation in the circuit court:

[T]his . . . is not like being tried for the same set of
facts in two different jurisdictions.

What happens is it is, instead, being tried in one
jurisdiction and having your indictment in another case by
a state government used to enhance your punishment and in
fact having that been accomplished solely because you were
indicted by that jurisdiction and with their
participation, for which there was punishment.

Thus, appellants at once characterize the enhancement and
subsequent prosecution as a “multiple punishment” case and
a “subsequent prosecution” case. Chief Judge Bell has
emphasized the importance of the distinction between the
two types of cases, commenting that “[t]hat distinction is
not, nor was it meant to be, a slight one.” Whittlesey II,
340 Md. at 98 n. 9, 665 A.2d 223 (Bell, J., concurring and
dissenting).

Appellants’ arguments thus depend on the enhancement
imposed by the district court being “punishment” for the
crimes alleged in the Integra indictments, or on Maryland’s
participation in the federal sentencing proceeding
constituting a “prosecution” of those crimes. We conclude
that this case is neither a “multiple punishment” case nor
a “subsequent prosecution” case; rather, it is something of
a “sheep in wolf’s clothing” — a clever attempt to
disguise a standard “dual sovereign” case as both an
unconstitutional “multiple punishment” case and a
“subsequent prosecution” case. Because of the unusual
nature of appellants’ arguments, it is better to describe
what this case is not rather than attempt to describe what
it is. Thus, we shall address both labels that appellants
assign to the proceedings.

Multiple Punishment

[4, 5] Even assuming the “dual sovereign” doctrine did not
apply — that Maryland was actually involved in the
sentence enhancement in a way that would qualify as
“prosecution” — appellants’ argument that they were
already “punished” for Page 645 the crimes alleged in the
Integra indictments is wholly without merit. The Court of
Appeals has addressed the constitutionality of sentence
enhancements based on uncharged conduct for which the
convicted person is later charged and tried. In Smith v.
State, 308 Md. 162, 517 A.2d 1081 (1986), the trial court,
during the sentencing phase of a rape trial, admitted and
considered witness testimony of uncharged conduct,
ultimately using the testimony to enhance the sentence
imposed for the rape conviction. In ruling this use of the
testimony constitutional, the Court of Appeals stated:

Smith’s . . . contention that consideration of uncharged
conduct may lead to a double jeopardy violation if a
subsequent trial is held is . . . meritless. Such evidence
is introduced at sentencing to provide the presiding judge
with a complete composite of the defendant. Manifestly, it
is not a trial to punish the defendant for an untried
crime. In United States v. Wise, 603 F.2d 1101 (4th Cir.
1979), the defendant was convicted of various drug-related
offenses. At sentencing the judge considered perjured
testimony given by the defendant at the trial of a
codefendant. At that time, the defendant had not been
convicted of perjury. Citing United States v. Grayson, 438
U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), the Fourth
Circuit stated:

“[W]e believe that when a sentencing judge takes into
account various aspects of the defendant’s background,
including other offenses committed, in order to assess the
defendant’s need for rehabilitation, the sentence thereby
imposed does not constitute punishment for these aspects
of defendant’s background.” 603 F.2d at 1106.

Smith, 308 Md. at 174, 517 A.2d 1081. The Court squarely
held that “the consideration of a defendant’s untried
criminal conduct, while sentencing him for another crime,
does not violate the constitutional prohibition against
double jeopardy.” Id.

The Supreme Court’s decision in Witte v. United States,
515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995),
provides support for the conclusion of the Court of Appeals
in Smith Page 646 and for the same conclusion in the case
at bar. In Witte, the United States District Court for the
Southern District of Texas enhanced the appellant’s
sentence for a conviction of attempted possession of
marijuana, basing the enhancements on previous, connected,
but uncharged activities concerning the importation of
cocaine and marijuana. Id. at ___, 115 S.Ct. at 2203. The
district court enhanced the sentence under Sentencing
Guideline § 1B1.3, which specified that the
sentencing range for a particular offense is determined on
the basis of all “relevant conduct” in which the defendant
was engaged and not just with regard to the conduct
underlying the offense of conviction. Id. The appellant was
later indicted and prosecuted for the importation of the
drugs, and he claimed that this subsequent prosecution
placed him in double jeopardy. Id.

The Fifth Circuit reversed the trial court’s dismissal of
the subsequent indictments, and the Supreme Court affirmed.
Id. at ___, 115 S.Ct. at 2204. The Supreme Court noted that
courts, in fixing sentences, have often taken into
consideration a defendant’s prior convictions for which he
has already been sentenced. Id. at ___, 115 S.Ct. at 2205.
The Supreme Court then said that, for double jeopardy
purposes, it makes no difference whether the enhancement
occurs within the first or the second sentencing
proceeding. Id. at ___, 115 S.Ct. at 2206. Relying on its
earlier decision in Williams v. Oklahoma, 358 U.S. 576, 79
S.Ct. 421, 3 L.Ed.2d 516 (1959), the Court reiterated that
“use of evidence of related criminal conduct to enhance a
defendant’s sentence for a separate crime within the
authorized statutory limits does not constitute punishment
for that conduct within the meaning of the Double Jeopardy
Clause.” Witte, 515 U.S. at ___, 115 S.Ct. at 2206.

We note that in Witte, the Supreme Court was faced with
the “double jeopardy implications of taking the
circumstances surrounding a particular course of criminal
activity into account in sentencing for a conviction
arising therefrom.” Id. (emphasis added). In the case sub
judice, as in Witte, appellants’ subsequent indictment, on
which the district court improperly Page 647 enhanced
their sentence for the fraud conviction, was based on the
same “particular course of criminal activity” as the
activity that resulted in a conviction. The district court
concluded as much when it cited appellants’ “substantially
similar criminal activity” in Maryland, imposing a
three-level enhancement under United States Sentencing
Guidelines (USSG) § 5K2.0 for “continued criminal
activity.”[fn5] That the schemes may have been executed at
different times changes nothing; the attempted marijuana
possession in Witte occurred in 1991, while the cocaine
importation occurred in 1990. Witte, 515 U.S. at ___, 115
S.Ct. at 2202-03. We hold that the use of the Integra
indictments to enhance the sentence for the federal
conviction was not “punishment” under the Double Jeopardy
Clause of the Fifth Amendment.

Subsequent Prosecution

[6] Given the foregoing analysis, a consideration of
appellants’ further argument is unnecessary. Nevertheless,
we can easily dispose of the contention that Maryland’s
participation Page 648 in the federal sentencing hearing
was a “prosecution,” by the State of Maryland, of the
crimes alleged in the Integra indictments. We have no
difficulty concluding that it was not. On its face, the
prosecution that resulted in the improper sentence
enhancement was by the United States, in the courts of the
United States, and under the laws of the United States.
Cady was called as a witness for the United States. He
testified as to the existence of the Integra indictments, a
purely factual matter. Cady simply gave information that he
knew. The State made no prosecutorial decisions, and this
case fits squarely into the “dual sovereign” doctrine.

[7] In addition, the Supreme Court has stated, “By
authorizing the consideration of offender-specific
information at sentencing without the procedural
protections attendant at a criminal trial, our cases
necessarily imply that such consideration does not result
in `punishment’ for such conduct.” Witte, 515 U.S. at ___,
115 S.Ct. at 2206. By the same token, we believe, the lack
of procedural protections precludes a sentencing proceeding
from being a “prosecution” of criminal conduct. The
prosecution has already occurred, and has resulted in a
conviction. If the United States was not prosecuting
appellants in the sentencing proceeding, we hardly see how
the State’s involvement in a role as no more than that of a
witness could be labeled a prosecution by the State.

Our conclusion gleans support from Whittlesey II, wherein
the Court of Appeals rejected the appellant’s contention
that a capital sentencing proceeding is the equivalent of a
trial, and thus bars a prosecution for the robbery that was
an element of the State’s case at sentencing. Whittlesey
II, 340 Md. at 77, 665 A.2d 223. While not explicitly
rejecting the proposition that a capital sentencing
proceeding is like a trial, the Court rejected the
appellant’s double jeopardy claim, relying on its earlier
reasoning in a previous appeal in the case. In Whittlesey
v. State, 326 Md. 502, 535, 606 A.2d 225 (Whittlesey I),
cert. denied, 506 U.S. 894, 113 S.Ct. 269, 121 L.Ed.2d 198
(1992), the Court noted that, “if [appellant] is found
guilty of murder in the first degree, the State may seek a
sentence of Page 649 death even though the aggravating
circumstance” was the robbery of the murder victim. Id.

Central to the conclusion of the Court of Appeals in
Whittlesey I was its reasoning that

the prosecution of [appellant] for murder is justified by
the public interest in law enforcement, accommodating the
societal concern in prosecuting and convicting those who
violate the law. On this record, [appellant] is not
entitled to use the Double Jeopardy Clause as a weapon to
prevent the State from its prosecution on the murder
indictment [following a conviction for robbery].

Id. The Court was influenced in that case by Justice
O’Connor’s concurring opinion in Garrett v. United States,
471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985):

Decisions by this Court have consistently recognized that
the finality guaranteed by the Double Jeopardy Clause is
not absolute, but instead must accommodate the societal
interest in prosecuting and convicting those who violate
the law.

Id. at 796, 105 S.Ct. at 2420.

Were we to endorse appellants’ argument, we would hold
unconstitutional as double jeopardy all testimony by any
State government witness, in a proceeding by a separate
sovereign, as to the proven or alleged criminal activity of
a person accused or convicted under the separate
sovereign’s criminal law. The Double Jeopardy Clause would
become a sword for appellants, not a shield. We do not
believe that the Constitution bars such participation. We
affirm the circuit court’s refusal to dismiss the
indictments on Fifth Amendment grounds.

II

[8] Finally, appellants argue that the subsequent
prosecution violates the guarantees of due process
contained in the Fourteenth Amendment. Any violation of due
process was committed by the sentencing federal court, not
the State. The error was imperfectly remedied on appeal,
but it was still the Page 650 federal court’s error.
Appellants rely upon the general argument that the
Fourteenth Amendment prohibits to the State those practices
that are “repugnant to the conscience of mankind.” Palko v.
Connecticut, 302 U.S. 319, 323, 58 S.Ct. 149, 151, 82 L.Ed.
288 (1937). We see no repugnance to constitution or
conscience in refusing to permit appellants to escape
prosecution for a serious State offense because they served
less than one month longer of a federal sentence than they
would have because a federal court erroneously used the
existence of that offense against them. To hold otherwise
would permit appellants to use the Constitution as a weapon
in a way that was not intended. Whittlesey I, 326 Md. at
535, 606 A.2d 225.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY
AFFIRMED.

COSTS TO BE PAID BY APPELLANTS.

[fn1] In its Memorandum in Aid of Sentencing submitted to
the U.S. District Court prior to sentencing on the federal
convictions, the government detailed other sales fraud
schemes perpetrated by appellants. This appeal concerns
only the sentence imposed for the NPCL scheme and the
indictments for the Integra scheme.

[fn2] The record does not reveal the range of sentences
possible for an offense level of twelve with a one-level
criminal history enhancement. Nevertheless, at the motions
hearing in the circuit court, the State and appellants
stipulated that appellants would have been sentenced to
sixteen months of incarceration had the district court not
used the Integra indictments to adjust upwardly the offense
level.

[fn3] Neither the record nor appellants’ brief discloses the
precise dates of appellants’ initial incarceration or
resentencing. The State agreed at the hearing in the
circuit court that appellants would have been released on
June 7, 1996 had they served a sixteen-month sentence.

[fn4] The following language of the Fifth Amendment to the
Constitution of the United States prohibits double jeopardy:

[N]or shall any person be subject for the same offence to
be twice put in jeopardy of life or limb. . . .

The Double Jeopardy Clause applies to State criminal
proceedings through the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23
L.Ed.2d 707 (1969). Although the prohibition against double
jeopardy is recognized in the common law of Maryland, see
Middleton v. State, 318 Md. 749, 756, 569 A.2d 1276 (1990),
appellants rely solely on Fifth Amendment and Fourteenth
Amendment constitutional protection.

[fn5] The district court stated that it was departing upward
based on “similar criminal conduct” under USSG, §
2J1.7. This facial reliance on USSG, § 2J1.7
presents a problem of interpretation not explicitly
addressed by the D.C. Circuit Court, as this Guideline
section allows an enhancement based upon a “conviction”
only, 18 U.S.C. § 3147 (1997), and only in the case
of a conviction for a federal offense that is committed
while on release on another federal charge. Commentary,
USSG, § 2J1.7. Neither of these conditions are met
in this case; the Integra indictments were for State
offenses, and no convictions have yet been obtained.

The Circuit Court, however, relied upon its decision in
Fadayini to uphold the district court’s authority to
enhance appellants’ sentences for the NPCL convictions. In
Fadayini, the Circuit Court affirmed a three-level upward
departure under U SSG, § 5K2.0, which, inter alia,
allows an upward departure based on aggravating
circumstances “of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines. . . .” USSG, § 5K2.0. The
court in Fadayini held that “post-arrest criminal conduct”
can be such an aggravating circumstance, Fadayini, 28 F.3d
at 1242, and upheld the three-level upward departure as one
analogous to U SSG, § 2J1.7, but permitted under
§ 5K2.0. Id. Thus, because the district court could
not have departed upward under § 2J1.7, and because
the Circuit Court relied on Fadayini, we are convinced that
the district court in the case sub judice actually relied
upon USSG, § 5K2.0 to depart upward.