Olsen v. McFaul
| Citation | 843 F.2d 918 |
| Decision Date | 13 May 1988 |
| Docket Number | No. 86-4000,86-4000 |
| Parties | Richard OLSEN, Petitioner-Appellant, v. Gerald T. McFAUL, Sheriff, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
William T. Wuliger, Roger Kleinman, argued, Wuliger, Fadel & Beyer, Cleveland, Ohio, for petitioner-appellant.
John T. Corrigan, Domenic Delbalso, Richmond Heights, Ohio, for respondent-appellee.
Before KENNEDY, RYAN, and BOGGS, Circuit Judges.
Petitioner Olsen was convicted by an Ohio jury of writing a bad check and theft in office. He appeals the denial of a writ of habeas corpus under 28 U.S.C. Sec. 2254, contending that both convictions are constitutionally invalid. We affirm the denial with respect to the bad check conviction, but reverse with respect to the theft in office charge.
Olsen was recreation director for the city of Broadview Heights, Ohio in 1980. At that time, he entered into negotiations with a representative of the World's Finest Chocolate Company (WFC) for the purchase of candy bars to be sold by participants in the summer recreation program as a fund-raising drive. The outcome of these negotiations was an order for 1,000 cases of candy bars, to be delivered on a consignment basis and sold, at a retail price of $30 per case. This initial order was for $30,000 worth of candy. The arrangement called for approximately one-half of the retail price of any candy sold to be retained by the fund-raising organization, and the remainder to be returned to WFC as payment for the candy. Any unsold candy could be returned to WFC for a full refund.
The city's charter provides that the city council
shall have the power ... [t]o authorize all contracts and make the necessary appropriations therefore. No contract shall be binding upon the City until it has been authorized or approved and the necessary money has been appropriated.
Art. III, Sec. 7(e). The city department with immediate jurisdiction over fund-raising for city recreational activities is the Board of Recreation and Activities (the board). After placing his order with WFC, Olsen went to the board for approval of the agreement. The agreement was signed on December 2, 1980. On January 21, 1981, Olsen attended a board meeting where the candy fund-raising idea was considered. The board rejected Olsen's proposal on the grounds that independent fund-raising was not necessary because any shortfall in recreation funding would be made up by the city council. Therefore, no approval of the contract or appropriation of funds was ever sought from the council.
Consequently, on March 30, 1981, Olsen contacted the WFC salesman and sought to terminate the agreement, without ever specifically saying that the fund-raising scheme had not been approved by the city. The Salesman, unwilling to take no for an answer, talked Olsen into reducing the order from 1,000 to 350 cases instead of cancelling it entirely, by reminding Olsen that he already owed $600 for preprinted labels and suggesting that this would be a way of recouping what would otherwise be a $600 loss. The 350 cases of candy were delivered on May 1, 1981, to the city hall. About ten cases were damaged immediately when they were unloaded, and Olsen simply gave these cases away to bystanders.
At trial, the exact disposition of the remaining cases was never fully explained. Of the 350 cases, 235 were ultimately returned to WFC. Of the remaining 115 cases, Olsen claimed that about 75 cases were actually sold, although other figures were also mentioned at trial, from 54 to 70. Olsen had no clear idea of what happened to most of the remaining cases; some were lost, some were damaged, some were distributed for sale and never heard of again, and some were sold without Olsen ever obtaining or asking for the proceeds.
Similarly vague is how much money Olsen collected from the sales and what became of it. Some money financed a trip for one girls' softball team; some of it was allegedly spent to build a new backstop for the ballfield. However, there were other fund-raising activities during the summer of 1981, increasing the amount of money Olsen handled, and introducing further unresolved confusion as to how much of the money may possibly have ended up in Olsen's pockets.
What is perfectly clear is that WFC pursued Olsen all summer, calling him at home and at city hall and leaving numerous messages. Olsen never returned the calls, nor did he pay the bill.
Olsen was replaced as recreation director in December 1981, and the new director promptly contacted Olsen to inquire about bills submitted to the city by WFC which the city finance department knew nothing about. Olsen responded that the debt was "taken care of." The next month the new director received another bill, and contacted Olsen again, at which time Olsen suggested that the check must have been lost in the mail. In fact, no check had been sent.
The matter was then turned over to the city's law department, which made a determination--and this is critical to our resolution of this case--that the city was obligated to pay the bill, but that Olsen was obligated to reimburse the city. The law director called Olsen into the mayor's office for a meeting in late January 1982. Olsen failed to appear at this first scheduled meeting, but did appear at a second scheduled meeting on February 6. He was asked to pay the bill. He responded that he needed to make a phone call in order to arrange payment, and was allowed to use the phone. He called the weather. No check was forthcoming in the succeeding days.
On March 18, 1982, the city sent two policemen to Olsen's home. According to Olsen, one of them said, "If you don't come with me, I'm going to break both your arms." Olsen cooperated, driving himself to city hall. While the same policeman who issued the threat remained in the room, Olsen then met with the law director, who informed him that he would be charged that night with five felonies if he did not write out a check for the full amount owed WFC. Olsen claimed he did not have that much money in his checking account, but ultimately the law director accepted a check, dated the following day, for $1,852.43. The check was returned unpaid twice. Eventually, the city paid the bill itself.
On November 5, 1982, Olsen was indicted in state court for three offenses: grand theft, theft in office, and issuing a bad check. The grand theft charge stated the date of the offense as December 1, 1981, and charged that Olsen,
knowingly and by deception obtained or exerted control over money with the purpose to deprive the owner, City of Broadview Heights, of said property or services. The value of said property or services being $150.00 or more....
The theft in office charge alleged the same date for the offense, December 1, 1981, and charged that Olsen,
purposely, being a public official, did commit a theft offense, the said Richard W. Olsen having used his office or permitted or assented to its use in aid of committing the offense, the property or services involved owned by the municipality of Broadview Heights in violation of Section 2921.41 of the Ohio Revised Code.
The bad check charge gave March 19, 1982, as the date of the offense, included a copy of the bad check, and charged that Olsen,
with the purpose to defraud City of Broadview Heights, issued or transferred or caused to be issued or transferred a negotiable instrument, to-wit: a check, knowing that it would be dishonored.
Olsen sought a bill of particulars, and, in late December of 1982, received the following explanation of the charges against him:
That on or about March 26, 1982, at approximately during business hours, at the location of 9243 Broadview Road, in the city of Broadview Heights, Ohio, the Defendant, RICHARD OLSEN unlawfully and purposely and with the purpose to defraud City of Broadview Heights, issued or transferred or caused to be issued or transferre[d] a negotiable instrument, to-wit: a check, knowing that it would be dishonored.
FURTHERMORE, on the same date, at the same time, and at the same location, the Defendant, RICHARD OLSEN unlawfully and purposely being a public official, did commit a theft offense, the said RICHARD W. OLSEN having used his office or permitted or assented to its use in aid of committing the offense, the property or services being involved owned by the municipality of Broadview Heights in violation of Section 2921.41 of the Ohio Revised Code.
FURTHERMORE, on the same date, at the same time, and at the same location, the Defendant, RICHARD OLSEN unlawfully and knowingly and by deception obtained or exerted control over money with the purpose to deprive the owner, City of Broadview Heights, of said property or services.
(Emphasis added). Thus, the bill of particulars changed the date of the bad check offense from March 19 to March 26, 1982, and changed the date of the other two offenses from December 1, 1981, to March 26, 1982, the same day the bad check offense was said to have occurred.
Nothing appears in the record to explain why the dates December 1, 1981, and March 26, 1982, were used on the indictment and the bill of particulars. The bad check offense was originally pegged to the date, March 19, 1982, the date written on the check by Olsen on the evening of March 18. The bill of particulars changed this date to March 26 for no apparent reason. The theft in office offense was also changed to March 26, also for no apparent reason, after initially being fixed upon another date of no apparent significance, December 1, 1981. The initial agreement between Olsen and WFC was entered into on December 2, 1980. A defense attorney confronted with these dates might well have wondered whether the state had evidence of events other than those that his client had revealed to him. The prosecution, however, never explained the significance of these dates.
Olsen sought a further ...
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