People v. Dewald, No. 251804 (MI 7/14/2005)

• Decision Date: 14 July 2005
• Docket Number: No. 251804.,251804.
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME WESTFIELD DEWALD, Defendant-Appellant.
• Court: Michigan Supreme Court

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME WESTFIELD DEWALD, Defendant-Appellant.

No. 251804.

Court of Appeals of Michigan.

May 12, 2005.

July 14, 2005 at 9:05 a.m.

Appeal from the Ingham Circuit Court LC No. 02-001185-FH.

Before: Cooper, P.J., and Jansen and Hoekstra, JJ.

PER CURIAM.

Defendant appeals by right his jury trial convictions of false pretenses, $1,000 or more but less than $20,000, MCL 750.218(4)(a); false pretenses less than $200, MCL 750.218(2); two counts of common law fraud, MCL 750.280; and two counts of larceny by conversion, $20,000 or more, MCL 750.362. Defendant was sentenced to consecutive terms of sixteen to sixty months' imprisonment for the false pretenses, $1,000 to $20,000, convictions; ninety days in jail for the false pretenses under $200, convictions; and 23 to 120 months' imprisonment for the two convictions of common law fraud and the two larceny by conversion convictions. We affirm.

Defendant's convictions stem from his operation of two political action committees (PACs) during the 2000 election campaign and recount. Defendant was the chief of staff of both Friends for a Democratic White House (Friends) and Swing States for a GOP White House (Swing States). Defendant also incorporated PAC Services, with the purpose of providing services to the PACs defendant had formed. Defendant solicited contributions through mailings. A contention at trial was that defendant's mailing lists were stolen from the Federal Election Commission (FEC) disclosure statements of the 2000 Presidential campaigns of both Al Gore and George W. Bush. These statements list the contributors to each campaign and appear on the FEC website, along with a warning that the lists are for informational purposes only and may not be used for commercial or solicitation purposes.

Defendant's PACs collected around $700,000 in contributions. Three victims of defendant's solicitation letters testified at trial. They all testified that the solicitation letters they received implied an affiliation with either the Bush or Gore campaigns. They also testified that they donated to the PAC which solicited them because the letter led them to believe their contributions would go to either the Bush or Gore campaign. They also testified they would not have given money to the PAC if they knew the money was not going to either the Bush or Gore campaign. Defendant's PACs did give money to Democratic and Republican causes, but checks they attempted to give to the Republican National Committee and the Gore campaign were returned, i.e., those entities refused to accept the donations.

Defendant first argues that there was insufficient evidence to sustain his convictions. We disagree. The standard of review for sufficiency of the evidence claims in criminal cases is "whether the evidence, viewed in a light most favorable to the people would warrant a reasonable juror in finding" that all the elements of the crime were proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000). A reviewing court should not interfere with the jury's role in determining credibility of witnesses and weighing the evidence. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748, amended on other grounds 441 Mich 1201 (1992). The prosecutor does not have to disprove the defendant's theory of innocence. Nowack, supra at 400. Rather, the prosecutor need only prove the elements of the case beyond a reasonable doubt. Id. Additionally, "[i]t is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).

In order to prove false pretenses, the prosecutor must show: (1) a false representation concerning an existing fact, (2) knowledge by the defendant that the representation is false, (3) use of the representation with an intent to deceive, and (4) detrimental reliance by the victim. People v Reigle, 223 Mich App 34, 37-38; 566 NW2d 21 (1997). We find that the prosecutor presented sufficient evidence on each element to sustain defendant's convictions for false pretenses. Defendant, through the solicitation letters, represented that he was affiliated with either the Bush or Gore campaigns and the language in his letters implied that he knew the individuals to be past donors to the campaign.¹ Defendant used the candidates' names in his solicitation letters. Defendant's later letters represented that he was affiliated with the recount effort of each campaign after the election. All of these representations were not true because defendant's PACs were not affiliated with either party or its recount effort. It was also undisputed that defendant knew these representations were false, because he knew he was not affiliated with either political party's candidate for President.

There was also evidence that defendant used the representations with an intent to deceive. A defendant's intent to deceive can be inferred from the evidence, Reigle, supra at 39, and minimal circumstantial evidence is sufficient to prove a defendant's intent. People v Guthrie, 262 Mich App 416, 419; 686 NW2d 767 (2004). There was evidence presented at the trial that defendant used the candidates' names in his solicitation letter, knowing that this use was illegal. Defendant informed an investigator that he learned how to operate a PAC by reading the FEC guide. In this guide, it clearly stated that it was not proper for a PAC to use a candidate's name in its solicitations. There was also testimony from the counsel for the Republican National Committee that he sent defendant a cease and desist letter, informing him of his illegal and misleading use of Bush's name in his solicitations. Evidence indicated that defendant mailed additional letters using Bush's name after this letter. The circumstantial evidence presented at trial supported the prosecutor's theory that defendant used misrepresentations that he was affiliated with each political party with an intent to deceive potential donators into giving to his PACs.

There was also detrimental reliance by the victims. Each victim testified that he or she donated money to one of defendant's PACs. The victims also testified that they believed that the money was going to the Bush or Gore campaign and that they relied on this in sending the donations. The victims also testified that they would not have sent in the donations if they knew the money was not going to go to the respective campaigns. In addition, a victim testified that she sent a $200 donation for Friends and that her check was cashed. Another victim testified that he sent a check to Friends for $1,000 because he received the letter in the mail that asked him to assist Gore in his election campaign. And, another victim testified that he wrote a check to Swing States for $100 and that check was ultimately cashed.

For the above stated reasons, we find that there was sufficient evidence for the jury to find defendant guilty of false pretenses, $1,000 or more but less than $20,000, and false pretenses, less than $200.

Defendant also argues that there was insufficient evidence to find him guilty of two counts of common law fraud because the Bush and Gore campaigns did not suffer any loss. We disagree. MCL 750.280 defines the crime as the commission "of any gross fraud or cheat at common law." Defendant's convictions for common law fraud were based on the losses suffered by the Bush and Gore campaigns as a result of defendant's solicitation of Bush and Gore donors. Testimony at trial showed that defendant collected over $700,000 in donations using the campaign lists of Bush and Gore contributors. There was expert testimony at trial that the repeated use of these lists decreased their value, resulting in the campaigns suffering a loss. There was also testimony from the victims that they believed their donations were going to the Bush or Gore campaigns and that they would not have given to defendant's PACs if they knew the money was not going to either the Bush or Gore campaign. It can be inferred from this that the campaigns suffered losses because the victims wanted their donations to go to the campaigns, but instead the money went to where defendant saw fit. As such, we find that there was sufficient evidence to support defendant's convictions for common law fraud.

Defendant also argues that there was insufficient evidence to support his larceny by conversion convictions because there was insufficient evidence that defendant intended to defraud anyone. We disagree. An element of larceny by conversion is that the defendant must, at the time the property was converted, intend to defraud or cheat the owner out of the property. People v Scott, 72 Mich App 16, 19; 248 NW2d 693 (1977). There was evidence presented at the trial that supported the theory that defendant illegally used each campaigns' FEC disclosure of contributors. Swing States' mailing list contained fictitious names used by the Bush campaign in its FEC disclosure and Friends' mailing list contained errors that matched errors made on the Gore campaign's FEC filings. The FEC guide and website both contained warnings that these lists were not to be used for solicitation purposes. By using the lists for solicitation purposes, defendant defrauded the parties by soliciting further contributions from past donors, while implying that his PACs were affiliated with the campaigns. This evidence of an intent to defraud was sufficient to support the jury verdict.

Defendant next argues that his convictions should be reversed because they are preempted by federal law. We disagree. Determination of whether state law is preempted by federal law is an issue of statutory construction and an issue of law that is reviewed de novo. Westlake Transportation, Inc v Public Service Comm, 255 Mich App 589, 595; 662 NW2d 784 (2003)...