STATE of Arizona, Appellant, v. Wade Bruce COOK, Appellee.
No. 1 CA-CR 91-0760.
Court of Appeals of Arizona, Division 1, Department A.
Aug. 3, 1995.
Reconsideration Denied Nov. 1, 1995.
916 P.2d 1074
Review Denied May 21, 1996.
Lewis and Roca by Edward F. Novak and Charles W. Steese, Phoenix, for appellee.
OPINION
EHRLICH, Judge.
In our first opinion in this case, we concluded that fines imposed on Wade Bruce Cook (“defendant“) by the Arizona Corporation Commission for securities violations were penalties which precluded subsequent criminal prosecution for the same acts. State v. Cook, 177 Ariz. 595, 870 P.2d 413 (App.1993). We therefore affirmed the trial court‘s order dismissing the indictment. Id. The Arizona Supreme Court denied review. Subsequently, the United States Supreme Court granted certiorari, vacated the opinion and remanded the case in light of United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Arizona v. Cook, 513 U.S. 801, 115 S.Ct. 44, 130 L.Ed.2d 6 (1994).
In Dixon, the Court overruled Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), in which it had held that the Double Jeopardy Clause of the Fifth Amendment, in addition to banning multiple prosecutions and punishments for crimes containing the same “elements” as defined in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), also barred “any subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 495 U.S. at 521, 110 S.Ct. at 2093 (emphasis added). However, after Dixon, for purposes of the federal Double Jeopardy Clause, the single inquiry as to whether a person has been punished or prosecuted twice for the “same offense” again is the Blockburger same-elements test. See Hernandez v. Superior Court, 179 Ariz. 515, 519-20, 880 P.2d 735, 739-40 (App.1994).
In our original opinion, we held that the defendant could not be prosecuted for allegedly violating various securities laws for which the commission already had ordered
FACTS
The facts are set forth in detail in the original opinion. In summary, in February 1989, the Securities Division of the Arizona Corporation Commission accused the defendant of selling unregistered securities, selling securities without a license and securities fraud, violations of
Subsequently, the defendant was indicted for the same conduct which was the subject of the proceedings before the commission. The indictment includes eighteen counts: one count of violating
DISCUSSION
A. Whether the state has waived the right to assert that the defendant is not being prosecuted for the same offenses that were the subject of the administrative proceeding.
The defendant first raises the issue of waiver, arguing that the state never raised the question, either in the trial court or on appeal, whether he was being prosecuted for the same offenses. He maintains that the state cannot now argue that, even if the administrative penalty constitutes punishment, the criminal prosecution would not punish him for the same offenses for which he was punished by the commission. He asserts that it does not matter that the Court in Dixon overruled Grady because Grady would not have applied to his case. In other words, he argues that, even before Dixon was decided, the Blockburger test was the only test that applied in this case to determine whether he was being punished for the same offenses.
The defendant elaborates on his argument by noting that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). He points out that he has continually argued that the criminal prosecution in this case would constitute multiple punishments for the same offense and that Halper, upon which we relied in our original opinion, indicated that multiple punishment was at issue when a civil penalty was imposed in addition to a criminal penalty. Id. He then cites State v. Nunez, 167 Ariz. 272, 275-76, 806 P.2d 861, 864-65 (1991), for the proposition that, even before Dixon, Grady only applied to cases involving successive prosecutions and that only the Blockburger test applied to cases involving multiple punishments. Thus, he insists that the demise of Grady is immaterial and that the state should have asserted in the trial court and on appeal, as it now contends on remand, that
We do not agree with the defendant that Grady would not have applied to this case had the issue been presented originally on appeal. The defendant argues that this case does not involve a successive prosecution because, as explained in Mullet v. Miller, 168 Ariz. 594, 596-97, 816 P.2d 251, 253-54 (App.1991), cert. denied, 502 U.S. 1122, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992), the proceedings before the commission were not prosecutions. While that may be true, it does not mean that Grady would not have applied to the subsequent prosecution in this case.
In Halper, because the criminal prosecution occurred first, the subsequent administrative proceedings were not automatically barred since the administrative proceedings were not a subsequent “prosecution” and may or may not have resulted in “punishment.” The Double Jeopardy Clause was not implicated until the administrative proceedings resulted in a punishment. In this case, however, the administrative proceedings occurred first and resulted in punishment. Any subsequent criminal prosecution involving the same offenses, therefore, would be automatically barred by the Double Jeopardy Clause because a successful criminal prosecution could only result in punishment, making it unnecessary to go through the criminal prosecution to determine whether a “punishment” would result as is required in the reverse situation. In that sense, this case, as opposed to Halper, is just as much a successive prosecution case as it is a multiple punishment case.
This point specifically was addressed in Mullet in which the court explained that, once it was determined that the Corporation Commission imposed a punishment in the administrative proceeding, “the double jeopardy clause clearly prohibit[ed] a second proceeding to punish for the same conduct.” 168 Ariz. at 598, 816 P.2d at 255 (emphasis added). Thus, at the time this case originally was heard, the Grady same-conduct test would have applied to determine whether the defendant was being prosecuted for the same offenses for which the commission had imposed the penalty even if we had found that the proceedings did not involve the same offenses under the Blockburger same-elements test. There simply was no question at the time the original appeal was decided that the two proceedings involved the same offenses. Accordingly, the state has not waived the argument it now presents on remand. Now, the Court in Dixon having overruled Grady, we must employ the Blockburger same-elements test to decide whether the proposed prosecution seeks to try the defendant for the same offenses for which the commission imposed the penalty.
B. Federal double jeopardy analysis.
The Blockburger same-elements test focuses on the statutory elements of the two crimes charged, not on the factual proof that is offered or relied upon to secure a conviction. Hernandez v. Superior Court, 179 Ariz. 515, 518, 880 P.2d 735, 738 (App.1994). See also Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980) (”Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial“); Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (“[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.“). Thus, in determining whether the offenses are the same under the Blockburger test, we need look only to the statutory elements of the offenses to see if each statute contains an element not contained in the other; we may not consider the particular facts of the case in making that determination. Vitale, 447 U.S. at 416-19, 100 S.Ct. at 2265-67. If each statute does contain an element not found in the other, then the offenses are not the same and the double jeopardy bar does not apply. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
1. Analysis of Counts 2 through 17
The commission found that the defendant had violated
2. Analysis of Count 1
Count 1 charges the defendant with violating
A. Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony.
The commission found that the defendant violated
It is a fraudulent practice and unlawful for a person, in connection with a transaction or transactions within or from this state involving an offer to sell or buy securities, or a sale or purchase of securities, including securities exempted under
§ 44-1843 or44-1843.01 and including transactions exempted under§ 44-1844 , directly or indirectly to do any of the following:1. Employ any device, scheme or artifice to defraud.
2. Make any untrue statement of material fact, or omit to state any material fact made, in the light of the circumstances under which they were made, not misleading.
3. Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit.
A plain reading of
The defendant argues, however, that
The federal mail fraud statute,
The Court in McNally indicated that “the words ‘to defraud’ commonly refer ‘to wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.‘” 483 U.S. at 358, 107 S.Ct. at 2881. The Court then stated, “As we see it, adding the second phrase [“or for obtaining money or property by means of false or fraudulent pretenses ...“] simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property.” Id. at 359, 107 S.Ct. at 2881.
The defendant suggests that this means that the words “scheme or artifice to defraud” are synonymous with “obtaining money or property by means of false or fraudulent pretenses, representations or promises,” and that the second sentence is mere surplusage defining “scheme or artifice to defraud.” He therefore argues that “obtaining a benefit” is not an element of
We first note, as the supreme court recognized in State v. Haas, 138 Ariz. 413, 419, 675 P.2d 673, 679 (1983), that there is a distinct difference between the federal mail fraud statute and the Arizona scheme or artifice statute. The Arizona statute lacks the disjunctive “or” between “scheme or artifice to defraud” and “obtaining money or property,” and contains the specific requirement that the fraudulent conduct be done “knowingly.” The Arizona statute requires the state to prove that a defendant obtained a benefit, which is exactly what this court held in State v. Suarez, 137 Ariz. 368, 373-74, 670 P.2d 1192, 1197-98 (App.1983). Because obtaining a benefit is an element of
3. Analysis of Count 18
Count 18 of the indictment charges the defendant with violating
A. A person commits illegal control of an enterprise if such person, through racketeering or its proceeds, acquires or maintains, by investment or otherwise, control of any enterprise.
B. A person commits illegally conducting an enterprise if such person is employed by or associated with any enterprise and conducts such enterprise‘s affairs through racketeering or participates directly or indirectly in the conduct of any enterprise that the person knows is being conducted through racketeering.
Racketeering, as it was defined in
4. “Racketeering” means any act, including any preparatory or completed offense, which is committed for financial gain, which is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, which would be chargeable or indictable under the laws of this state had the act occurred in this state and which would be punishable by imprisonment of more than one year, regardless of
whether such act is charged or indicted, involving: * * * * * *
(s) Sale of unregistered securities or real property securities and transactions involving such securities by unregistered dealers or salesmen.
(t) A scheme or artifice to defraud.
Count 18, however, also charges the defendant under
We restate the gist of the Blockburger test. If each statute contains an element not found in the other statute, then the bar of double jeopardy does not apply. Clearly,
Accordingly, under federal Double Jeopardy Clause analysis, the defendant may be prosecuted under Count 1 as alleged in the indictment and may not be prosecuted as alleged in Counts 2 through 17. If the state wishes to proceed on Count 18, it must seek an amendment to that count charging the defendant with violating only
C. State Double Jeopardy Analysis.
1. The Arizona Constitution‘s Double Jeopardy Clause
The defendant first asserts that the Double Jeopardy Clause of the Arizona Constitution is broader than that clause of the Fifth Amendment. He bases this argument on State v. Cassius, 110 Ariz. 485, 487, 520 P.2d 1109, 1111 (1974), cert. granted, 419 U.S. 824, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974), cert. dismissed, 420 U.S. 514, 95 S.Ct. 1345, 43 L.Ed.2d 362 (1975), in which the court stated:
The question of whether two offenses are the same, and the criteria for resolving that question, are set out in State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971). There, we held that in order to constitute
different offenses, no element of either offense may be an element of the other; i.e., the two offenses must not contain a common element.... The federal courts use a different test, less favorable to the defendant. They hold that the offenses charged are not the same if each contains an element not contained in the other. Blockburger v. United States, 284 U.S. 299, 304 [52 S.Ct. 180, 182, 76 L.Ed. 306]....
As the passage indicates, the court in Cassius relied on Tinghitella, in which was set out a test called the “identical elements test.” 108 Ariz. at 3-4, 491 P.2d at 836-37. The Tinghitella case, however, did not involve the Arizona Constitution‘s Double Jeopardy Clause. It set out the identical elements test to determine the number of acts which could be punished under former
Furthermore, before Grady, the Arizona Supreme Court strongly suggested in dicta that the identical elements test, as set forth in Tinghitella, did not apply to double jeopardy analysis. In State v. Gordon, 161 Ariz. 308, 313 n. 5, 778 P.2d 1204, 1209 n. 5 (1989), it stated:
... [W]e note the distinction between the identical elements test, which focuses on the facts of the transaction and the conduct of the defendant in determining what is “an act” under
§ 13-116 , and the test used for double jeopardy analysis, which “focuses on the proof necessary to establish the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” [Full citations to Vitale, 447 U.S. at 416, 100 S.Ct. at 2265, and Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, omitted.]
This implies that the test for double jeopardy analysis under both the United States and Arizona Constitutions is the Blockburger same-elements test; there is no indication that there is a different double jeopardy analysis under the Arizona Constitution. We agree with this statement in Hernandez, 179 Ariz. at 522, 880 P.2d at 742:
The state and federal double jeopardy clauses are comprised of virtually identical language. We ordinarily interpret Article 2 section 10 of the Arizona Constitution in conformity to the interpretation given by the United States Supreme Court to the same clause in the federal constitution. We find no reason in this case to deviate from that policy of uniformity of interpretation. [Citation omitted.]
2. Double Punishment Under A.R.S. § 13-116
The defendant argues that Arizona‘s double punishment statute,
An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, to the extent the constitution of the United States or of this state require.
Even if the criminal prosecution seeks to punish the defendant for the same acts for which the commission imposed the penalty, we do not agree with the defendant that
The second sentence of
The defendant, nevertheless, argues that the statute must be broader because the California statute upon which
In full context, the California Supreme Court interpreted the statute as follows:
Under the section, all offenses in which the same act or course of conduct plays a significant part must normally be prosecuted in a single proceeding, unless joinder is prohibited or severance permitted for good cause. This rule is based on the assumption that the state has the opportunity to charge all offenses that may arise out of a single course of criminal conduct. Clearly, the assumption cannot be made where, as here, one of the prosecutions occurred in another jurisdiction.
Belcher, 113 Cal.Rptr. at 6, 520 P.2d at 390 (citations omitted) (emphasis added). Just as in Belcher in which joinder was not possible because the prosecutions were proceeding in separate jurisdictions, joinder was not possible in this case because a criminal proceeding and a commission hearing cannot be joined. Nor do we think that
D. Whether the civil sanctions were a penalty.
In Halper, 490 U.S. 435, 109 S.Ct. 1892, the Court held that a civil sanction must be classified as a criminal penalty for double jeopardy purposes to the extent that it cannot be characterized as remedial, i.e., intended to recompense the government for the loss the defendant caused. In our earlier opinion, we agreed with the trial court that the $150,000 sanction did not fit that classification. The state now contends that, even if the indictment involves the same offenses that were the subject of the commission hearings, this court should only consider that portion of the $150,000 administrative penalty attributable to the victims included in the indictment in determining whether the penalty constitutes a “punishment” under Halper.
The commission‘s penalty was based upon $1000 per each of 150 victims while the criminal prosecution involves eight victims. Therefore, the state‘s argument goes, because the Double Jeopardy Clause only precludes multiple punishments for the same offense rather than for the same conduct in general, only eight of the commission offenses are involved in the indictment and only $8000 of the penalty can be considered in determining whether the commission punished the defendant within the meaning of the Double Jeopardy Clause. It further maintains that, under Halper, the $8000 would not be considered a “punishment” so that the proposed criminal prosecution would not expose the defendant to multiple punishments.
At oral argument, the defendant‘s counsel first answered this with the assertion that the state was twisting the purpose of the Double Jeopardy Clause. He said that the clause forbids the state charging and punishing a person in one proceeding and then punishing the same person again in another proceeding. He argued that the trial court
The state had a twofold rejoinder. It said that the record shows that the defendant has not paid the penalty assessed by the commission, relying on an observation the supreme court made in Taylor v. Sherrill, 169 Ariz. 335, 344, 819 P.2d 921, 930 (1991). There, the court said, in discussing whether a defendant had carried his burden of proof in advancing a claim of double jeopardy under Halper, that the record did not show whether the defendant had or ever would pay the fine assessed against him in an earlier proceeding. This passing statement was only one of several more cogent reasons why the court found that the double jeopardy bar did not apply in that case and, in our opinion, it is doubtful that the court would have reached the same result had the failure to pay been the only rationale for the result. The state‘s second response was a restatement of its initial argument, which we do not accept. It is, in essence, an attempt to pro rate the punishment the commission imposed and reconstitute a small portion of it as an administrative expense chargeable against the defendant. This is an artificiality that cannot mask the fact that the defendant already has been punished for the same offenses that are the subject of Counts 2 through 17 of the indictment.
CONCLUSION
After re-examining this case in light of Dixon, we conclude that the object of Counts 2 through 17 of the indictment is to punish the defendant for the same offenses for which the commission has imposed a punishment; the defendant may not be prosecuted under those counts. Count 1 does not involve the same offenses as the administrative proceeding; the state may prosecute the defendant on that charge. The portion of Count 18 including
CONTRERAS, J., concurs.
KLEINSCHMIDT, Presiding Judge, concurring in part and dissenting in part:
I do not agree that the Double Jeopardy Clause of the Arizona Constitution need or should be interpreted in conformity with its federal counterpart. For all the reasons set out in the dissents in Dixon, I think the Grady same-conduct test is the better test for determining what constitutes the “same offense” within the meaning of the double jeopardy clauses. The test is entirely fair and easy to apply. We are free to apply it in interpreting the double jeopardy clause of the Arizona Constitution, and I think we should do so.1 I would hold that because the proposed prosecution seeks to punish the Defendant for the same conduct for which he was punished in the administrative proceeding, the criminal prosecution is barred by the Double Jeopardy Clause of the Arizona Constitution. I would also hold, therefore, that the Defendant could not be punished again under