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Broad anti-corruption law facing high court challenge

Other U.S. probes in Md. targeted Agnew, Mandel

By Gail Gibson and Dan Fesperman

Sun Staff

December 11, 2003

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To bring federal charges against Edward T. Norris, prosecutors relied on a broadly drawn public corruption statute now under challenge in a U.S. Supreme Court case that could have direct implications for Maryland's former state police superintendent.

The law allows U.S. prosecutors to pursue virtually any local corruption investigation, provided only that the probe is linked to a government agency that received at least $10,000 in federal funds. The statute does not require prosecutors to prove any connection between the alleged offenses and the federal money.

Its wide latitude has made the 1984 law popular with prosecutors, including the U.S. attorney for Maryland, Thomas M. DiBiagio, who took office two years ago with a promise to crack down on corrupt public officials, and who said yesterday that when his office was faced with credible evidence of wrongdoing in the Norris probe, "a decision was made not to look the other way."

"This indictment is consistent with, and in furtherance of, a simple proposition that has guided federal prosecutors in Maryland for more than 50 years: Justice without fear or favor," DiBiagio said at a morning news conference.

But defense attorneys and conservative law scholars across the country have expressed growing concern that the statute at the heart of the case against Norris goes too far in turning over to federal authorities what they say should be the realm of local and state prosecutors.

In an unexpected move this fall, the Supreme Court agreed to hear a Minneapolis bribery case to help determine whether Congress exceeded its constitutional authority in adopting the law. Legislative records show that the statute - sometimes referred to simply by its criminal code number, 666 - was intended from the start to be broadly construed as a way to protect the billions of federal dollars distributed each year through a range of programs.

The Supreme Court, through a series of recent rulings, has undertaken a broad re-examination of congressional authority and states' rights. The case of Minneapolis real estate developer Basim Omar Sarbi, who is charged under the corruption statute with bribing a City Council member, offered the high court a chance to examine the powerful role of federal prosecutors.

A trial judge in Minnesota dismissed the indictment against Sarbi on the grounds that the corruption statute was unconstitutional. A divided 8th U.S. Circuit Court of Appeals reinstated the charges, but with sharp dissent. Circuit Judge Kermit Bye wrote that by "inserting itself into a domain traditionally reserved for state and local prosecutions, the federal government treats state governments ... as untrustworthy organs incapable of policing their own."

The Minneapolis case also has important implications for Norris, who is accused of improperly using money from a little-known, off-the-books expense account to pay for liquor and lavish meals and to finance extramarital affairs with several women while he was commissioner of the Baltimore Police Department.

The indictment against him cites criminal code 666 as creating a federal nexus for the case, which raises the possibility that it could face problems if the Supreme Court finds the law unconstitutional.

Boston College law professor George D. Brown, an authority on the anti-corruption statute, said that in making routine motions to have the indictment against Norris dismissed, defense attorneys could logically request that any decision be put on hold until after the Supreme Court decides the Sarbi case.

"The statute, creatively used in the hands of the federal prosecutor, can just about cover any act of malfeasance on the state or local level," Brown said. But "the job of policing local corruption ought to be in the hands of state and local officials, and if they don't do a good job at it, they ought to be removed."

In Maryland, however, it is the U.S. attorney's office that has long gained national notice for its efforts in uncovering wrongdoing by public figures.

The tradition dates to the 1960s, well before Watergate, although the most prominent official caught by federal prosecutors here happened to be President Richard M. Nixon's first vice president, Spiro T. Agnew. The former Baltimore County executive and Maryland governor resigned as vice president Oct. 10, 1973, a day after pleading no contest in Baltimore's federal courthouse to tax evasion charges stemming from bribes he had collected.

"Certainly, in Maryland there is a legacy of attacking political corruption that befell [DiBiagio]," said George Beall, a Republican who was U.S. attorney when the office pursued Agnew. "The level of interest of his predecessors has waxed and waned, and from '92 to 2000, there was sort of a hiatus for reasons that I don't know. And Tom, I think to his great credit, recommitted the office to a watchdog function."

State Prosecutor Stephen Montanarelli said yesterday that he had been interested in pursuing an investigation when the first allegations arose concerning Norris' use of the off-the-books police fund.

"We were interested in the Norris matter when it surfaced, and we were just not able to develop the source," Montanarelli said. Of DiBiagio, he said, "He's doing what he perceives to be his job, and more power to him."

Montanarelli said that if the federal case were to run into problems, he would be willing to step in.

"Obviously, if it came into our hands again, we'd certainly take it. We'd be ready and willing to do whatever we could." In the meantime, he said, "We still have plenty of work to do."

While there is precedent for federal corruption prosecutions in Maryland, there also is precedent for Supreme Court intervention. Former Gov. Marvin Mandel's 1977 mail fraud conviction was overturned after the justices, ruling a decade later in a Kentucky case, held that the fraud statute under which Mandel was convicted had been applied too broadly.