STATE оf Arizona, Appellee, v. Robert Harlan GUNNISON, Jr., Appellant.
No. 4853-PR.
Supreme Court of Arizona, In Banc.
Sept. 22, 1980.
Rehearing Denied Oct. 21, 1980.
618 P.2d 604
Having fully considered the issues presented by appellants, we affirm the judgment of the Superior Court.
HAYS and GORDON, JJ., concur.
Stephen D. Neely, Pima County Atty. by Alan D. Davidon, Deputy County Atty., Tucson, for appellee.
Jack L. Lansdale, Jr., Tucson, for appellant.
On 21 September 1978, defendant Robert Harlan Gunnison, Jr., was found guilty of five counts involving violations of Chapter 12 (sales of securities), Title 44 of the Arizona Rеvised Statutes. The Court of Appeals, Division Two, reversed as to three counts (Counts 23, 166 and 167) and affirmed as to Count 1, conspiracy to sell securities in violation of
In 1975, Gunnison was the president of Arizona Realty and Mortgage Trust, a corporation which managed several other corporations, most of which were involved in the development and/or sale of subdivision lots within the State of Arizona and most of which suffered substantial cash flow problems resulting in an inability to construct projected improvеments in their subdivisions. Gunnison thus acted as an informal “receiver” for these ailing businesses. One of the land companies in his control was Consolidated Mortgage Corporation, which had previously been run by Nathan “Ned” Warren. Onе method by which Consolidated raised money was through liquidation of assets, including wholesale disposal of lots and sales of mortgages they held as mortgagees. Most, if not all, of the mortgages liquidated by Gunnison went to Equitable Mortgage Company, which, in turn, sold the mortgages to the public. Equitable‘s president was Thomas O‘Brien, a friend of both Gunnison and Warren.
Gunnison, O‘Brien, Warren and several other participants in the dealings of Equitable and Arizona Realty werе indicted by a Pima County Grand Jury for numerous alleged violations of state securities laws and for conspiracy to commit such violations. The defendant was named in 148 counts of the 173 count indictment. The cases of all indicted, with the exception of O‘Brien and Gunnison, were disposed of through plea negotiations. On 14 December 1977, O‘Brien was convicted, after trial to a jury, of 30 counts. In September of 1978, Gunnison was tried on the five counts.
The defendant waived his right to a jury. The parties stipulated that Gunnison‘s bench trial would include the testimony given in the O‘Brien trial, which had been heard by the same judge, and that the trial court would be governed by the legal principles set forth in the jury instructiоns given in the O‘Brien trial. Gunnison was convicted of all five counts and sentenced to five concurrent prison terms of one to three years. From this judgment and sentence he appeals.
There was extensive argument in the trial court concerning the scienter which the State must prove in order to convict the defendant. Gunnison attempted to show that he did not have the specific intent to
The trial court, in excluding evidence of good faith in the O‘Brien trial, stated:
“evidence or any comment upon the issue of whether * * * * * * O‘Brien knew that his conduct was unlawful * * * is neither relevant or material.”
In Gunnison‘s trial the court restated its position that scienter was not an element of the crime of conspiracy to violate
“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 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 matеrial fact, or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.
“3. Engage in any transaction, practicе or course of business which operates or would operate as a fraud or deceit.”
The criminal statute under which defendant was prosecuted in Count 1 read in part as follows:
“A person is guilty of conspiracy in the second degree if, with the intent to commit or to have another person commit, any action constituting any felony other than those listed in subsection A, he conspires with one or more persons to engagе in or cause the commission of such.”
A.R.S. § 13-331(B) .
a. Does
The interpretation of subsection 2 of
On the other hand, the Court of Appeals, Division One, in the case of Greenfield v. Cheek, 122 Ariz. 70, 593 P.2d 293 (App.1978), held that as to subsection 2, scienter, or guilty knowledge, was a necessary element of the violation of subsection 2 and that good faith would be a proper defense. We approved this interpretation by the Court of Appeals, Division One, of
Although we are not bound by the interpretation placed by the United States Supreme Court on the federal statute, it is helpful, for consistency in the application of the law, to be harmonious with the United States Supreme Court. Unless there is a good reason for deviating from the United States Supreme Court‘s interpretation, we
“* * * the language of § 17(a)(2), which prohibits any person from оbtaining money or property ‘by means of any untrue statement of a material fact or any omission to state a material fact,’ is devoid of any suggestion whatsoever of a scienter requirement. As a well-known cоmmentator has noted, ‘[t]here is nothing on the face of Clause (2) itself which smacks of scienter or intent to defraud.’ III L. Loss, Securities Regulation 1422 (2d ed. 1961).” Aaron v. Securities and Exchange Commission, 446 U.S. 680, 696, 100 S.Ct. 1945, 1955, 64 L.Ed.2d 611, 626 (1980).
We therefore hold that, as to civil cases, scienter is not an elemеnt of a violation of
b. Scienter for criminal violations
Even if we agree that scienter is not a necessary element of a civil violation of subsection 2 of
The crime of conspiracy has been widely regarded as involving a consciously criminal agreement and is for that reason blameworthy and punishable in itself: “conspiracy imports a cоrrupt agreement between not less than two with guilty knowledge on the part of each.” Morrison v. California, 291 U.S. 82, 92, 54 S.Ct. 281, 285, 78 L.Ed. 664, 671 (1934). See also, State v. Burkett, 344 So.2d 868, 869 (Fla.App.1977) (“criminal intent to commit a substantive offense“); State v. Lennon, 3 N.J. 337, 343, 70 A.2d 154, 157 (1949) (“sinister combination * * * far more perilous * * * than the criminal intent of a single individual“); People v. Rosenthal, 91 Misc.2d 750, 754, 398 N.Y.S.2d 639, 642 (1977) (“corrupt agreement * * * entered into with a criminal intent tо do an unlawful act“); State v. Miley, 291 N.C. 431, 437, 230 S.E.2d 537, 541 (1976) (“unlawful concurrence * * * * * * in a wicked scheme“); Commonwealth v. Steinberg, 240 Pa.Super. 139, 157-58, 362 A.2d 379, 389 (1976) (“common understanding * * * * * * that the participants are joined together to perpetrate an unlawful act“).
This criminality of intent, together with the increased danger believed to result from group effоrt, justify the arrest and punishment of conspirators when their crimes are merely inchoate; and without regard to whether a planned offense is ever completed:
“* * * For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the cоntemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.” United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 685, 59 L.Ed. 1211, 1215 (1915).
See also, United States v. Haldeman, 559 F.2d 31, 113 (D.C.Cir.1976), cert. den. 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (“intending with bad purpose either to disobey or disregard the law“); United States v. Mora, 598 F.2d 682, 683 (1st Cir. 1979) (“specific intent to violate the substantive statute“); United States v. Cangiano, 491 F.2d 906 (2nd Cir.), cert. den. 419 U.S. 904, 95 S.Ct. 188, 42 L.Ed.2d 149 (1974); United States v. Barone, 458 F.2d 1027 (3rd Cir. 1972); United States v. Powell, 564 F.2d 256, 258 (8th Cir. 1977) (“agreement to disobey, or to disregard, the law“)
Conspiracy is a crime that requires a mens rea, or sрecific intent, even if the crime the conspirators are agreeing to commit does not in itself require such intent. We agree with the California court that
“* * * even though a conspiracy has as its object the commission of an offense which can be committed without any specific intent, there is no criminal conspiracy absent a specific intent to violate the law. That is, to uphold a conviction for conspiraсy to commit a ‘public welfare offense’ there must be a showing that the accused knew of the law and intended to violate it.” People v. Marsh, 58 Cal.2d 732, 743, 376 P.2d 300, 307, 26 Cal.Rptr. 300, 307 (1962).
Accord, United States v. Ehrlichman, 546 F.2d 910 (D.C.Cir.1976), cert. den. 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977); Commonwealth v. Benesch, 290 Mass. 125, 194 N.E. 905 (1935); People v. Harris, 294 N.Y. 424, 63 N.E.2d 17 (1945); People v. Powell, 63 N.Y. 88 (1875).
Because the trial court in the present case specifically ruled that no intent to violate a known law need be shown for the State to prove a conspiracy charge, and because evidence of good faith was rejected, Gunnison‘s conspiracy conviction must fаll.
The decision of the Court of Appeals in reversing convictions on Counts 23, 166 and 167 is approved. The decision affirming conviction on Count 2 is also approved. The decision affirming the conviction on Count 1 is set aside and the matter remanded to the trial court for further proceedings consistent with this opinion. So much of the opinion of the Court of Appeals, Division Two, which affirmed the judgment of guilt and sentence as to Count 1 is, by this opinion, disapproved.
STRUCKMEYER, C. J., and HAYS and GORDON, JJ., concur.
HOLOHAN, Vice Chief Justice (specially concurring):
Although I prefer to adhere to our previous decision in Greenfield v. Cheek, supra, which approved the ruling of Division One of the Court of Appeals, the majority of the court prefers, for sake of uniformity, to accept the federal position that scienter is not an element of a violation of
I join with the majority in holding that scienter is not required in civil cases brought for violation of subsectiоn 2 of