Ex parte Day

• Citation: 584 So.2d 493
• Parties: Ex parte John Albert DeCastro DAY, a/k/a John Day, John Albert Day, and John A. Day. (Re STATE of Alabama v. John Albert DeCastro DAY, a/k/a John Day, John Albert Day, and John A. Day). 1900847.
• Decision Date: 28 June 1991
• Court: Supreme Court of Alabama

Page 493

584 So.2d 493

Ex parte John Albert DeCastro DAY, a/k/a John Day, John Albert Day, and John A. Day.

(Re STATE of Alabama v. John Albert DeCastro DAY, a/k/a John Day, John Albert Day, and John A. Day).

1900847.

Supreme Court of Alabama.

June 28, 1991.

F. Timothy McAbee, Birmingham, for petitioner.

James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for respondent.

HORNSBY, Chief Justice.

In January 1990, the grand jury of Blount County, Alabama, indicted John Albert DeCastro Day on 58 counts of violating Ala.Code 1975, § 8-6-17. Day petitioned this Court for a writ of mandamus ordering the Circuit Court of Blount County to vacate its November 27, 1990, order denying Day's motion to quash the indictment because of improper venue and to enter an order quashing it.

Section 8-6-17 reads:

"It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:

"(1) Employ any device, scheme or artifice to defraud;

"(2) Make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or

"(3) Engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person."

The indictment alleged that Day bought stock options without naming the accounts for which they were purchased and then, after waiting to see whether the options rose or fell in value, charged the options that rose in value to his account or to William David East's account (see Ex parte East, 584 So.2d 496 (Ala.1991)), and charged the options that fell in value to certain customers' accounts. The indictment alleged that he took all these actions without the consent or knowledge of the trustees of the accounts to which the fallen options were charged and that the trustees of those accounts were residents of Blount County. Day argues that venue in Blount County is improper because, he says, the purchase, sale, or posting of the options could have occurred only in Jefferson County, Alabama, or in New York City, New York. Therefore, Day says, venue is proper only in Jefferson County, Alabama, under Alabama Constitution of 1901, Art. I, § 6, and Ala.Code 1975, § 15-2-2; he argues that venue is proper only in the county where the alleged offense was committed and that "in a criminal prosecution venue must be properly laid to give the trial court jurisdiction." We disagree with Day's analysis.

On February 3, 1990, Day made a motion in the Circuit Court of Blount County to quash the indictment against him on the grounds that that court was without jurisdiction because, he claimed, none of the alleged acts could have occurred in Blount County. On November 27, 1990, after a hearing on the matter, the trial court denied Day's motion to quash the indictment.

In its order, the trial court stated:

"The defendant [Day] argues that this court is without jurisdiction because the acts alleged to have been committed could only have occurred, if at all, in another county and not in this circuit. The state and the defendant have alleged different facts that support their respective positions.

"It is the opinion of this court, that the matters in dispute are factual and that the state is required to prove both jurisdiction and venue at trial."

On January 23, 1991, Day petitioned the Court of Criminal Appeals for a writ of mandamus ordering the trial court to vacate its November 27, 1990, order and to enter an order quashing the indictment against Day. The Court of Criminal Appeals denied Day's petition, and he now petitions this Court for a writ of mandamus on the same grounds and for the same relief.

Mandamus is an extraordinary writ, to be issued only where there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. C & G Development v. Planning Comm'n of the City of Homewood, 548 So.2d 451 (Ala.1989).

Day relies upon this Court's opinion in Ex parte Hunte, 436 So.2d 806 (Ala.1983), for the proposition that the acts alleged under the indictment were completed once the options that fell in value were put into the customers' trust accounts. However, Hunte is distinguishable, because it involved an issue of venue under the Medicaid Fraud Act, Ala.Code 1975, § 22-1-11. In Hunte the defendant was indicted in Montgomery County, Alabama, for violating § 22-1-11. The defendant petitioned the Court of Criminal Appeals for a writ of mandamus ordering the Montgomery Circuit Court to transfer the case to Mobile County, Alabama, on the grounds that the alleged fraudulent Medicaid application had been completed in Mobile County. The Court of Criminal Appeals granted the defendant's petition, and this Court granted the state's petition for a writ of certiorari to review that decision. We held that under § 22-1-11 the crime was complete once a false claim or statement was made in an application for payment from Medicaid. This Court held that the statute did not require that the Medicaid Agency receive or rely upon the application. The opinion in Hunte was careful to distinguish the Medicaid Fraud Act from the tort of misrepresentation and fraud, because in fraud actions the act or omission complained of may also occur in the county where the victim relied upon the false representation.

Section 8-6-17 is similar to statutes dealing with fraud, because it is intended to prohibit all fraudulent schemes in connection with the offer, sale, or purchase of securities. "This is true whether or not the artifices employed involve a garden-type variety of fraud, or present a unique form of deception. 'Novel or atypical methods should not provide immunity from the securities law.' " Buffo v. State, 415 So.2d 1158, 1165 (Ala.1982) (quoting A.T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (2d Cir.1967)).

In Buffo this Court affirmed the defendant's conviction for violating § 8-6-17. The defendant was a California real estate appraiser; the fraudulent documents were prepared in California and sent to an insurance company in Montgomery, Alabama. The Alabama Department of Insurance later relied on the fraudulent documents in determining the company's net worth. This Court upheld the defendant's conviction in...