State v. Tyler

execute that warrant at the time of defen-

dant’s trial. appellate

Although defendant’s counsel were, second-guess

seeks to the efforts that witness,

undertaken to locate this much of resulting speculation criticism rests support

and did not find the cross-exami- attorney’s investigator. county

nation of the conclude, court,

We as did the district

the State made a effort to locate

Cheri proved Jolin because that effort

unsuccessful, was entitled to read into evi- testimony prior

dence her from the arguments present- have considered all appeal judg-

ed on this and conclude that the

ment of the district should be affirmed.

AFFIRMED. Iowa, Appellee,

STATE TYLER, Appellant.

Scott C.

No. 92-1952.

Supreme Court of Iowa. 23,

Feb. McGIVERIN, C.J., and

Considered HARRIS, CARTER, SNELL, and ANDREASEN, JJ.

HARRIS, Justice. story complicated begins in 1983 Tyler received a cord- when defendant Scott telephone day gift. as a father’s The less intercepted Tyler’s conversations on led, prior prosecu- telephone and this tion, to conviction on two counts of first- intercepted degree Because the State theft. warrant, messages without a search suppressed in that taped conversations were trial, convicted was nonetheless ninety days before he was re- and served probation. on leased Tyler filed a suit in Following his release County and oth- against Scott federal court ers, monitoring his cordless charging that rights. his civil The fed- telephone violated granted summary judg- eral district intercepted holding against Tyler, ment communica- were not “wire” conversations meaning of federal wire- within the tions judgment The was affirmed on tap law. appeals, court of appeal to the circuit on petition A for writ of certiorari F.2d 705. United was filed behalf Supreme Court. was denied States rehearing, request 493 U.S. for there was 107 L.Ed.2d 743. 110 S.Ct. Congress to began lobbying Tyler then telephone conver- privacy in cordless ensure sought part campaign he of his sations. As retroactively wiretap Act to have the federal interception of preclude the warrantless conversations, he telephone cordless him to “reinsti- hoped would allow somehow his action tute” litigation and money to finance raised present prosecution lobbying efforts. campaign. arose from alleged five grand jury indictment Each fraud violations. counts of securities Firm, P.C., Gary K. Koos of Koos Law Tyler did the use charged that count appellant. Davenport, for informa- incomplete or incorrect misleading, to several tion, sell, to sell securities Gen., or offer P. Atty. Robert Campbell, J. Bonnie pro- of various in violation Gen., individuals E. named Ewald, Atty. and William Asst. chapter Davis, appellee. visions County Atty., witnesses, documents, people provided money present named had all to examine law, Tyler’s litigation lobbying evidence, efforts. explain summarize the request prosecutor indictment. Tyler’s publicity lobbying campaigns expressing opinions barred were financed backers who contributed to attempting facts and from to influence the Privacy the “National Cordless Phone Advo- grand jury’s [p]rosecutori- ... [but] action cacy Group,” president. of which he was infringes process al a misconduct due when largest engi- contributor was a mechanical reasonable likelihood exists that it Tyler $210,000. neer provided who about induce action other than that which the $62,- Reynolds provided Tyler William about grand jurors in judg- their uninfluenced father, Reynolds, 000. William’s .Charles ment would take. $26,000. Tyler Jeanine Cassatt provided Tyler Peggy Padget provid- $2000. Paulsen, (Iowa v. 286 N.W.2d Tyler ed a check for $2000. Harris (citations 1979) omitted). $10,000. “loaned” him Valerie Weeks loaned Some criticism is well tak him Tyler In all claimed to have $3500. en; prosecutor testify by here did inter $600,000 $700,000 received from his back- jecting personal knowledge before the ers. grand jury. But there no reversible primary factual issue trial was Tyler error. For reversible error must show payments Tyler by whether made to any prosecutorial that misconduct made Cassatt, Weeks, Padget, Harris and Charles impossible for him fair to have a trial. State Reynolds legitimate contributions in Hall, (Iowa 1975). 235 N.W.2d 712-13 cause, support of political they or whether significant, though It controlling, is not that were investments made the inducement prosecutor’s none of the remarks receiving higher a tenfold or return after Tyler complains jury were heard Tyler “reinstated” his lawsuit Scott reject convicted him. Id. at 713. We assignment nothing because there is to indi jury Tyler guilty found anything prosecutor first cate that said to the grand two-counts. The third count jury, press, was dismissed. any impact or to the had The district jury’s court declared mistrials on the on the trial deliberations. other Tyler two counts. was sentenced to II. The elements a securities fraud imprisonment and the matter is us before on under Iowa Code sections 502.401 and 502.- Tyler’s appeal. (1991) are: assignments Because the tend to over- be (1) The defendant sold or offered to sell lapping commingled, they will not neces- security; sarily separately be discussed the order (2) willfully The defendant knowing- presented. have taken care to consider ly either but, Tyler’s arguments all of to avoid unnec- (a) Made an untrue statement of ma- essarily extending opinion, rejected fact, terial some without comment. (b) nonmisleading Omitted a state- Tyler I. prosecutorial contends that mis- ment of material fact under the grand jury conduct before the so tainted the circumstances, the omission rendered proceeding deny process. as to him due He misleading. defendant’s statements argues “prosecutor made himself a (3) Tyler prosecutor specific witness.” The defendant did with asserts the so backed his factual intent to defraud. up statements in the press. case,” “Throughout Tyler says, claims the statements he prosecution “the overzealous of Mr. legal opinion made were ones of and con continually objective tainted an view the legal opinion tends that statements of cannot facts and law.” grounds point fraud. To a he is prosecutors clear that have the correct. The statute under which charged requires showing of an “untrue Tyler’s lobbyists spoke to one of over the material fact” or the omission She statement 502.401(2). conversation, phone. In that recorded Rus- a “material fact.” normally sell stated that: legal opinion is insufficient A of the offense. this element establish imagine I cannot situation which we retroactive, make this assum- [bill] with com is consistent statute [Tyler] ing we ... I’ve told did Representations or state mon-law fraud. times, hundred that it was not our intent in normally concerning are ments domestic phones, 1986 to cover cordless and for us representations of fact and regarded not say silly. going That’s now for fraud arises even therefore action know, But, happen. you it doesn’t seem they are false. 37 Am.Jur.2d Fraud when in.... to sink (1968); § 73 see International and Deceit lobbyist, again Tyler this himself informed Gisch, 63, 73, 137 Milling 258 Iowa Co. v. call, during phone a of lack of recorded his (1965) 625, (referring opinion 631 N.W.2d lobbying intent to refile a suit and the ef- generally). the state and fraud But when produce fort’s failure to enactment of retro- fact, they representations ments become of legislation. active as be treated fraudulent. Restatement Gisch, (Second) (1992); § of 545 see Torts very Tyler vague trial At about the 73, at 137 N.W.2d at 631.1 This 258 Iowa theory source of his reinstatement which he entirely past our cases on consistent with point “original as intent.” At one referred to subject. v. Wisconsin Educ. See University he attributed it to a Harvard law Hoefer (Iowa Trust, 336, Ins. 470 N.W.2d 340 Ass’n professor, on but retreated cross-examina- 1991). Tyler implied press in tion. a release attorney Shapiro, a an with the that Steve principles common-law fraud These Union, espoused American Civil Liberties meaning fraud light east on the of securities theory. publish him to a Shapiro But forced It is that under the statute. a sound rule disclaimer. person a protects a accused of crime whose in Tyler persisted soliciting nevertheless only wrong misapprehension of is an honest letter, money Peggy Padget. A mailed necessarily this rule does not the law. But Padget by Tyler’s supporters, of reit- one Tyler. on protect Fraud cannot be defended winning chances of the refiled losing erated the grew $53 it of a sole basis that out evidence, million lawsuit According to lawsuit. the State’s Harris, Padg- supporter, later showed fantasy, in which he Tyler’s lawsuit was a one encouraged promotional in- et a video believe. His suit after could not and did not Tyler in the ease. arrived told unlikely vestment feder all to be reinstated under pending. still It was at Padget the suit was legislation changing more al the law Padget cause time that “loaned” the this change improbably, making the retroactive. repay- a that allowed for under note $2000 be reinstated notwith Most of all it was to $20,000 completion. plus at the suit’s ment impediment of over standing the absolute Padget provided with a check Harris $2000 of because of coming the rule stare decisis payment was repayment, to cover but judgment. rel. prior adverse See State ex his Mundie, 462, stopped. N.W.2d 563 Lankford 1993) (Iowa existing (legislation cannot affect by Linda Jeanine was also solicited Cassatt judgment). It Tyler “loaned” Harris. too $2000. She understanding money would Tyler in was her Kathy had worked with Russell congressional lobbying support be used to capacity congressional counsel for her transaction, Padget lawsuit. As with the technology on and law. committee senate implica- expressly of includes driven the existence of matter tion, 1. The distinction is fact, recipient misrepresentation presumed a justifiable all are to it, reliance. Because relying upon misrepresentation justified bound to take notice of know the law and are though any legal extent as purely opinion fact to the same a it cannot be said that Fraud, misrepresentation of Restatement fact.” and Deceit other (Second) deceive. 37 Am.Jur.2d could However, § 545. misrepresentation as of Torts "if a a Tyler possibility adopted there knew was no real that The Court test for deter legislation passed retroactive would be mining when an “investment contract” is a still insisted the suit successful security. An contract is investment a securi his discussions with Cassatt. “(1) investment; (2) ty if it evidences in a (3) enterprise; common awith It unnecessary say is almost (4) profit; to be derived from Padget totally sold interest in a Cassatt entrepreneurial managerial efforts of It worthless lawsuit. would be ludicrous to 64, 950, at others.” Id. emphasize think otherwise. We the worth- only seriously L.Ed.2d at 59. The contested Tyler’s lessness of suit to underscore the (1) (2) elements here are investment and not, point that State’s could in fact did profits. not, expected believe it. The State’s evidence on point directed understand- Padget loaned ing factual, which was suit. is a legal, $2000 not a due, interest, July without 1992. The given matter. And the whether transaction was evidenced in- legal opinion quality written is of or character additionally strument constituting payment misstatement fact is one f r $20,000 Gisch, upon jury. paid completion my to “be 258 Iowa at 137 N.W.2d correctly at 631. The trial court lawsuit-” The clearly thus instrument evi- sub- mitted matter dences an dispute the as factual to investment. the jury. jury The instructions were not the There was a reasonable of subject any objections. of profit because the a required note evidenced III. asserts that the transactions in $20,000 payment contingent upon suit com- (Cassatt) (Padget) I count II count did pletion. Padget’s testimony supported a not involve “securities” and therefore could finding that she believed she would at some not have violated Iowa Code section 502.401 profit. jury time receive a The could find element, requires which as an the sale of a person, provided that a with “ security. ‘[sjecurity’ The term any means had, the Padget information would believe a note; stock; stock; treasury bond; deben- profit likely. was ture; indebtedness; of evidence certificate of interest or participation profit in a Cassatt transaction ex- sharing was identical agreement; contract; cept ... no or, writing ... investment evidences it. loan While the general, any in Tyler’s primarily lobby- interest or com- was to $2000 instrument aid ” monly efforts, ing ‘security’.... known as a expected Jeanine Cassatt also (1993). 502.102(14) § statutory profit. Again, objective person lan- an the guage incorporated was jury by into one of the limited information held Cassatt could instructions. The State reasonably profits relies on its trial expect from the invest- theory that the transactions involved “invest- ment. ment contracts.” conclude transactions securi- 502.102(14) Iowa Code section is substan- ties. tially pertinent in part, similar and was mod- 3(a)(10) after, § eled of the 1934 Securities IV. We find no abuse of in discretion 78c(a)(10) Exchange § Act. See 15 U.S.C. evidentiary rulings subject that are the (1993). Because of this we view cases inter- separate one, assignments. In Charles 3(a)(10) preting § persuasive. as Reynolds alleged victim in count V— —the testify was allowed Supreme although to United States State did Court general has file principles testimony required outlined minutes his and a test to security determine when a State witnesses Iowa exists under rules of criminal 3(a)(10). 4(5) procedure Reynolds’ legal Court is not bound name was formalisms, typed but instead into the takes “account indictment but no other notice economies of the indicating appear transactions under investi was he would as a gation.” Young, Reves v. Ernst & Reynolds’ testimony U.S. witness. before the 56, 61, 110 945, 949, grand jury 108 L.Ed.2d Tyler, was available to corpus writ of habeas to the transcript long federal court on possession had counsel mistrial). state court that declared the before assumed, are prejudice if Even abuse State witness. She Harris was valuable jury Because the was is moot. Tyler’s lobby in his was associate efforts to count, on this unable to reach verdict in Congress, as well as investor of the mistrial declared. Recurrence Tyler’s alleged vic- scheme. She was to unlikely should the State elect to problem it under- tim in one count. The State admits retry cannot believe there this count. We extraordinary to secure Har- took no efforts any prejudice regarding other counts explains was because presence ris’s this testimony. Reynolds’ she a defense witness. was also complains expert because an ample opportunity time and The State had concerning testify witness was allowed to presence and failed to do secure Harris’s validity planned re-establishment rely so. It had no defense to assuming abuse there was his lawsuit. Even prosecution In produce a critical witness. because, already prejudice as we light prohibitions against of constitutional indicated, validity could no witness establish jeopardy, right to former had a dis- assignments two other wé to his suit. On prejudice on count. Tax missal with admitting of audio- find no abuse evidence percent ninety percent Tyler, ten costs change tapes denying Tyler’s motion for the State. of venue. IN PART AND RE- AFFIRMED merit in one of V. We do find IN PART. VERSED IV, alleged victim count assignments. Harris, produced the State was not CARTER, J., except concur All Justices Tyler sought a at time dismissal the who dissents. prevented retrial of the that would have CARTER, (dissenting). Justice Harris was count. court found that a witness Iowa rule of unavailable as under I dissent. 804 and therefore entered mistrial evidence Irrespective of frauds that defendant the properly on the count. If the mistrial may may perpetrated or the crimes he entered, may retry Tyler the on the of, guilty of guilty he is not securities be Watts, charge. 244 State v. N.W.2d same “security” that under the definition of fraud (Iowa 1976). 586, grant The decision to 588 Under that defini- this court has fashioned. is deny generally a motion for mistrial arrangement tion, necessary Id. A for abuse of discretion. reviewed security to be a scheme that the State claims jeopardy put state not defendant profit evidence v. twice for the same offense. Arizona entrepreneurial or “to from the be derived 497, 503, 824, Washington, 98 434 U.S. S.Ct. managerial of others.” efforts 829, 717, right This 54 L.Ed.2d 726 majority’s conclusion that the backers’ judgment and final includes attaches before to be derived anticipated profits his trial “valued to have the defendant’s Id., managerial National the efforts particular completed by a tribunal.” Advocacy Group 503, Privacy 829, Phone at 54 L.Ed.2d at Cordless at 98 S.Ct. U.S. dispute appears without unavailability prosecu sustainable. 727. of critical Where mistrial, from the transac- any anticipated profits the tion is the basis evidence 508, present prosecution is upon scrutiny appropriate. at tions Id. strictest entirely dependent on the 831, be at based would at 54 L.Ed.2d 730. 98 S.Ct. “rein- proposed amount to be recovered defendant not scrutiny is available County. Given in a claim stated” lawsuit of the second trial at time litigation, theory proposed such of the challenging jeopardy, but also former realized, recovery, compensation if be appeal. would entry of direct the actual mistrial on injury plaintiff 826, sustained provable at 54 L.Ed.2d at See id. alleged (former violations constitu- as a result of jeopardy considered claim rights by tional law enforcement officials. alleged prior

Those violations occurred to the Tyler’s advocacy group

time that recovery simply

formed. The

product applying events organization.

antedated the formation of that

David HEGG and Elaine

Hegg, Appellants,

HAWKE YE TRI-COUNTY

REC, Appellee.

No. 92-1964.

Supreme Court of Iowa.

Feb. Murphy

Robert Murphy, J. & Roberts Independence, appellants. Dreher, Jorgensen

Thomas P. Simpson Jensen, Moines, appellee. & Des HARRIS, P.J.,

Considered LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.

PER CURIAM. property is whether damage suit was barred a statute of limi- barred, finding tations. On it was the trial

Case Details

Case Name: State v. Tyler

Court Name: Supreme Court of Iowa

Date Published: Feb 23, 1994

Citation: 512 N.W.2d 552

Docket Number: 92-1952

Court Abbreviation: Iowa