State v. Barber
| Decision Date | 13 July 1982 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 133 Ariz. 572,653 P.2d 29 |
| Parties | STATE of Arizona, Appellee, v. Alfred Randal BARBER, Appellant. 5205. |
| Court | Arizona Court of Appeals |
The appellant/defendant, Alfred Randal Barber, was indicted on 84 counts involving conspiracy, fraud in the sale of securities, sale of unregistered securities, sale by an unregistered security dealer, and grand theft by false pretenses. The appellant was found guilty, after a jury trial, on 45 counts and was sentenced to concurrent terms of not less than three years nor more than four years on Count I, and not less than four years nor more than six years on the remaining counts. The appellant has appealed and is currently released on bond pending the disposition of this appeal.
The appellant raises six issues for our disposition which will be considered in the order presented in appellant's opening brief.
The indictment against the appellant was returned by the statewide grand jury on April 10, 1979. The original indictment was amended twice during trial to dismiss certain counts. The appellant contends that 14 of the security fraud counts should have been dismissed because they were barred by the statute of limitations. The following listed contested counts, charges, and dates are set out below for clarification of this issue.
Count Charge Date of Sale Last Dividend Payment
----- --------------- ------------ ---------------------
16 Security Fraud 9/5/72 6/14/74
17 " " 4/10/73 "
22 " " 10/2/72 6/28/74
23 " " 1/10/74 "
24 " " 2/21/74 "
37 " " 4/3/73 "
38 " " 4/6/73 8/15/74
39 " " 10/22/73 "
40 " " 10/18/73 "
41 " " 10/29/73 "
42 " " 11/5/73 "
43 " " 1/10/74 "
44 " " 2/27/74 "
45 " " 4/9/74 "
In each of the above counts, the appellant is charged with directly or indirectly selling or offering for sale fraudulent securities on the specific dates set out in the "date of sale" column.
A.R.S. § 13-106.B (repealed 1978), which applies to the time frame of this case, reads in pertinent part as follows:
An indictment for a felony other than those mentioned in subsection A of this section shall be found, or an information filed for such felony, within 5 years after its commission .... (emphasis added)
Appellant argues that the above listed 14 security fraud counts are barred by the statute of limitations because the April 10, 1979 indictments were more than five years after the date of the sale of the securities.
The state argues that the appellant made payments allegedly representing dividends on each of the securities in question well within the statutory five-year period. The state contends the payment of these so-called dividends was an integral part of the scheme to defraud rather than events merely incidental to the security fraud.
A criminal statute of limitations puts a time limitation in which the state has jurisdiction to act against the accused. Such statutes are to be liberally construed in favor of the accused and against the prosecution. State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972).
It is well settled that a statute of limitations begins to run when an offense is completed. Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1942).
In Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), the Supreme Court pointed out that the fraudulent scheme involved (mail fraud) was completed when the defendants received the money that was intended to be obtained by their fraud, and that certain subsequent banking transactions were merely incidental and collateral to it, and not a part of it.
The appellant relies upon Carroll v. United States, 326 F.2d 72 (9th Cir.1963), where the Ninth Circuit relied on Kann in concluding that the mailing of stock certificates evidencing the ownership of stock previously offered, accepted and paid for did not go to the essence of the "offer or sale" proscribed by the Securities Act, and were only incidental to it. The court found that the crime was complete when the sale of the stock was executed by offer, acceptance and payment.
The Ninth Circuit distinguished Carroll in United States v. Brown, 578 F.2d 1280 (9th Cir.1978), cert. denied, 439 U.S. 928, 99 S.Ct. 315, 58 L.Ed.2d 322, where the defendant argued that five counts of violations of 15 U.S.C. §§ 77q(a) (securities fraud) 1 were barred by the statute of limitations. The sales in issue in Brown were evidenced by the written assignment of land purchase contracts, and the receipt of payments from individual investors in return for the assignments, which took place more than five years before the return of the indictment. Many of the land contracts were forged. Payments were made within the five year period to purchasers of these forged instruments as if they were genuine.
The defendant in Brown relied on Carroll in arguing that the subsequent use of the mails by him to transmit purported monthly payments to individual investors was not part of the "offer or sale" and that such mailings could not constitute the starting point for the computation of the period of limitations.
The Brown court found that the facts of the case before them did not fall within the holding of Carroll. It held as follows:
The mailings of purported monthly payments to the purchasers of the land contracts, in our view, constitute an integral part of the transaction which the court found to be fraudulent. In analogous prosecutions under the mail fraud statute (18 U.S.C. § 1341) activities tending to lull investors, either to prevent discovery of fraud or to permit further fraudulent activities to progress unhindered, have been held to constitute a part of the execution of the fraudulent scheme and to be integral to the offense rather than incidental to it. United States v. Ashdown, 509 F.2d 793 (5th Cir.1975); United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). The record before us is ample to support a like conclusion.
United States v. Brown, supra, 578 F.2d at 1285. See also United States v. Jensen, 608 F.2d 1349, 1355 (10th Cir.1979), ("the statute of limitations is no bar if there is an ongoing scheme continuing into the five year period."); United States v. McDonald, 576 F.2d 1350, 1357 (9th Cir.1978), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 ().
Similarly, in the case before us, the indictment alleged that appellant and his co-conspirators planned and participated in a comprehensive scheme to defraud investors. Evidence was adduced at trial which indicated that appellant's method of operation was to locate potential investors through the sale of medicare supplemental insurance policies. Once appellant and his associates ascertained that the victims had money to invest, they would offer them an opportunity to buy stock in allegedly growing and stable companies. After the victims had invested in these companies, appellant would pay them "dividends" which he represented as profits of the company. The evidence showed that these "dividends" did not come from company profits. One victim testified that by receiving regular dividend payments, she "thought it was a good company and it was responsible [and] never thought it was anything else but what they claimed it to be."
We agree with appellee that the facts of this case fall within the reasoning of Brown. The record before us is sufficient to support a conclusion that the dividend payments were in furtherance of the fraudulent scheme and served the purpose of lulling the recipients into a state of complacency, thus perpetuating the fraudulent scheme. Accordingly, these payments may constitute the starting point for the computation of the period of limitations. The trial court did not err in denying appellant's motion to dismiss these counts as barred by the statute of limitations.
Appellant contends there was multiplicitous charging by the state on seven counts of grand theft by false pretenses and that the court erred in not dismissing such counts, which were numbered as counts 3, 7, 11, 15, 28, 32 and 36. Appellant argues that the same facts and offenses were charged as security fraud in counts 2, 4, 8, 12, 25, 29 and 33.
A charge may be defective as multiplicitous when it charges a single offense in multiple counts. State v. O'Brien, 123 Ariz. 578, 601 P.2d 341 (App.1979). In determining multiplicity the court must consider whether each count of the indictment requires proof of a fact that the other counts do not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Appellee argues, and we agree, that the elements of grand theft by false pretenses and the elements of security fraud differ in at least four...
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