In a state where prosecutors' hands are tied by political considerations and limited resources, only the U.S. government can bring a corrupt governor and his powerful associates to justice, federal prosecutors argue in a brief seeking to uphold the convictions of suspended Maryland Gov. Marvin Mandel and five codefendants.
"The defendants now say they resent this federal prosecution," the federal prosecutors say in their 122-page brief scheduled to be filed today with the U.S. Fourth Circuit Court of Appeals in Richmond. "That is not surprising. Had there there been no federal investigation, there is little reason to believe that any part of the massive fraud they had perpetrated would have been exposed and brought to justice."
The federal argument, prepared by prosecutors Barnet D. Skolnik, Daniel J. Hurson and Elizabeth H. Trimble, is in direct rebuttal to last month's assertion by Mandel and his codefendants that the federal grand jury probe and prosecution represented an unconstitutional intrusion into a state's right to police itself.
Mandel, businessmen W. Dale Hess, Harry W. Rogers III, Wiliam A. Rogers, Irvin Kovens and former attorney Ernest N. Cory Jr. were convicted last August of conspiring to corrupt the governor's office and thereby defraud the citizens of Maryland of its governor's "faithful" and "loyal" services.
The scheme, federal prosecutors said, earned Mandel $350,000 in gifts in return for his lobbying for legislation to enrich a race track secretly owned by the other defendants. Because a number of documents were mailed as part of this conspiracy, Mandel and his friends were charged with and convicted of breaking federal mail fraud and anti-racketeering laws.
In seeking to have their convictions overturned, the defendants said the evidence showed merely "a noncriminal scheme of nondisclosure" rather than crimes upon which the "slim reed" of mail fraud charges could be based.
The evidence at trial tells a far different story," federal prosecutors argue in their brief. "In every area of the case that evidence is replete with fraud."
But were it not for the federal prosecutors, the prosecutors themselves argue, Marvin Mandel and friends never would have been tried and convicted.
"Holding high state office, while it may sometimes effectively immunize the public official from state prosecution, has never prevented federal prosecution where federal offenses have been committed," the prosecutors assert.
"In the present case, an intensive 18-month grand jury probe exposed a massive fraud scheme covering essentially the entire period of Marvin Mandel's tenure as governor," they say.
Mandel ruled the state with authority, his influence with the legislature was pervasive, his control of the bureaucracy complete," according to the prosecutors.
"Who is to prosecute such fraud?" the prosecutors ask.
"Traditionally, the (Maryland) attorney general has been politically allied with the governor. The practice has been for these officials to run together on a ticket for statewide office," the government brief says.
"Ignoring political considerations," the brief notes that the attorney general, under the state constitution, can "investigate, commence and prosecute" a criminal case only when directed by the governor or by a joint resolution of the legislature.
"The task facing one of Maryland's local state's attorneys would have been even more staggering," the federal prosecutors say. "No local prosecutor, even one possessed of the extraordinary political courage necessary to begin, could likely have gotten very far with such an extensive investigation, considering the lack of resources and limitations on subpoena power which characterize all state's attorneys throughout Maryland."
"Faced with a criminal scheme so expansive, yet in many ways so subtle and involving such powerful figures in both the public and private section that Maryland's state and local authorities could not or would not act," the prosecutors say, "federal authorities did act. Then, and only then, Marvin Mandel's power and stature as governor could no longer serve as a shield from justice."