State v. O'Brien
| Decision Date | 17 September 1979 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 601 P.2d 341,123 Ariz. 578 |
| Parties | The STATE of Arizona, Appellee, v. Thomas Michael O'BRIEN, Appellant. 1405. |
| Court | Arizona Court of Appeals |
Defendant Thomas M. O'Brien was indicted on July 8, 1977, for conspiracy, securities fraud, and various violations of the Real Property Securities Dealers Act. After a jury trial, he was found guilty of 30 counts and was sentenced to concurrent prison terms of one to three years on each count. On appeal he contends:
1. The indictment was deficient in alleging the conspiracy count and the fraud counts.
2. Five counts charging him with unlawfully acting as a securities dealer and five counts charging him with selling securities for which no permit had been obtained were multiplicious.
3. Counts charging him with failure to sign and deliver to the purchaser the statement required by the Real Property Securities Dealers Act and to retain an executed copy of the statement for four years are duplicitous.
4. He was improperly prosecuted for alleged fraud in the sale of real property securities under A.R.S. § 44-1991, the general antifraud section of the Securities Act.
5. His pretrial statements should not have been admitted in evidence.
6. Requiring two witnesses to claim the privilege against self-incrimination in front of the jury and then granting them immunity was prosecutorial misconduct requiring reversal.
7. His cross-examination of prosecution witnesses was unconstitutionally restricted.
8. Testimony regarding an undisclosed exhibit should have been stricken.
9. The trial court should have found his waiver of the attorney-client privilege was not knowing and intelligent.
10. His accountant should not have been permitted to testify.
11. State Real Estate Department closures should have been excluded.
12. Hearsay was improperly admitted.
13. The jury instructions improperly confused aiding and abetting with conspiracy.
14. Either he should have been permitted to introduce evidence on his lack of knowledge that his conduct was unlawful or it was error to instruct the jury on knowledge as an element of conspiracy.
Although he seeks dismissal of the conspiracy and 10 fraud counts and a new trial as to the remaining counts, he does not challenge the sufficiency of the evidence and none of his arguments is directed to his conviction for failure to post a real property securities dealer's bond or failure to file a real property securities dealer's annual report. All of the charges arose from the advertising, offering for sale, or sale of mortgages by O'Brien as president of Equitable Mortgage Company, Incorporated. Initially, he attacks the indictment on various grounds.
His first contention is that the conspiracy and fraud counts do not contain sufficient facts to inform him of the nature of the charges against him and thus violate the due process clauses of both the U. S. and Arizona constitutions. Though the counts contain the date of the event, the name of the victim, and the name of the defendant, he argues that they are deficient because they merely allege the language of the statute without describing the nature of the alleged conspiracy or the particular false statements or omissions that constitute each offense. The transcripts of the grand jury proceedings, however, include testimony about each alleged violation. Therefore, we need not reach the question of whether the charges in the indictment, taken alone, were sufficient to give him the notice and information guaranteed by the constitution. See State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957); Cf. State v. Hagen, 27 Ariz.App. 722, 558 P.2d 750 (1976) (). The transcripts provided "facts sufficiently definite to inform (him) of the offense charged." 17 A.R.S. Rules of Criminal Procedure, rule 13.2.
O'Brien also attacks the indictment on grounds of both multiplicity and duplicity. Multiplicity is defined as charging a single offense in multiple counts, whereas duplicity is charging multiple offenses in a single count. United States v. Lubomski, 277 F.Supp. 713, 716, n. 2 (N.D.Ill.E.D.1967). The indictment charges O'Brien with five counts of unlawfully acting as a securities dealer, A.R.S. § 44-2066.03, and five counts of selling securities without a permit, A.R.S. § 44-2066.08. He argues that the counts are multiplicious since he can only be convicted of one violation of each statute regardless of how many separate acts he engaged in. We disagree. A.R.S. § 44-2066.03 proscribes acting as a real property securities dealer without a permit. A.R.S. § 44-2066(2) defines a real property securities dealer as one who engages in the business of (a) selling or (b) offering to accept or accepting funds for continual reinvestment. The criminal act defined by § 44-2066.03 is, therefore, tied to a sale or transaction. Accordingly, each separate sale or transaction constitutes a separate offense. See State v. Cartwright, 20 Ariz.App. 94, 510 P.2d 405 (1973). In the case of § 44-2066.08, which prohibits selling securities without first obtaining a permit, it is equally clear that the proscribed conduct is the selling. Again each sale or transaction consummated without a permit constitutes a separate violation and therefore a separate offense. See State v. Cartwright, supra. See also Katz v. United States,369 F.2d 130 (9th Cir. 1966), reversed on other grounds, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Robinson v. United States, 366 F.2d 575 (10th Cir. 1966), cert. den. 385 U.S. 1009, 87 S.Ct. 717, 17 L.Ed.2d 547 (1967); Mitchell v. United States, 142 F.2d 480 (10th Cir. 1944). Cases cited by O'Brien stand for the proposition that when a course of conduct is the object of a criminal statute and the statute is ambiguous as to the "unit of prosecution," See, e. g., United States v. Universal C.I.T. Credit Corp.,344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), the statute shall not be construed to create a separate offense for every step of the course of conduct. They have no application to the statutes in this case.
We also reject O'Brien's contention that five counts of the indictment are duplicitous in charging him with both failing to "sign and deliver . . . a seller's statement" and failing to "retain an executed copy thereof." Each separate offense must be charged in a separate count. 17 A.R.S. Rules of Criminal Procedure, rule 13.3(a). Duplicitous indictments are prohibited in order to give notice to the defendant of exactly what charges he must defend against and to avoid the consequences of the inability of the jury to indicate which way they are voting on each of the charges. Kimble v. State, 539 P.2d 73 (Alaska 1975). A count is not considered duplicitous merely because it charges alternate ways of violating the same statute. State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680 (1968). The seller of real property securities is required to issue a seller's statement to the buyer and to retain an executed copy. A.R.S. § 44-2066.04. The clear objective is to require the seller to make certain disclosures to the buyer at the time of sale. Retention of a copy of the disclosures is not a separate offense but merely an added responsibility designed to ensure and confirm performance of the principal objective. There was no error in charging O'Brien in one count with both elements of violating the same statute. State v. Campbell, 217 Kan. 756, 539 P.2d 329 (1975).
O'Brien's next argument is that he was improperly indicted on 11 counts of fraud and conspiracy because he was charged with violation of and conspiracy to violate A.R.S. § 44-1991, the general securities regulation statute, instead of § 44-2066.05 dealing with fraud in the sale of real property securities. He urges that by passing a specific statute dealing with real estate securities, the legislature implicitly repealed the existing general securities statute insofar as it relates to real property securities. We do not agree.
Legislatures are presumed to enact statutes compatible with existing legislation. Arizona State Board of Directors v. Phoenix Union High School District, 102 Ariz. 69, 424 P.2d 819 (1967). Statutory repeal by implication is not favored. State v. Carpenter, 1 Ariz.App. 522, 405 P.2d 460 (1965). A specific statute does not supplant an earlier general statute unless all provisions are covered; that is, where the specific statute is narrower, the general one is not repealed. People v. Lustman, 13 Cal.App.3d 278, 91 Cal.Rptr. 548 (1970); United States v. Burnett, 505 F.2d 815 (9th Cir. 1974). Where a single act violates more than one statute and there is no evidence of legislative intent to repeal one of them, the government has the option of prosecuting under either. United States v. Brown, 482 F.2d 1359 (9th Cir. 1973).
The principle that the specific law controls over the general applies only where the specific conflicts with the general. State v. Canez, 118 Ariz. 187, 575 P.2d 817 (App.1977). O'Brien concedes that the fraud provisions of § 44-2066.05 are limited to misrepresentations and omissions in the sale of real estate securities, whereas § 44-1991 also includes schemes, artifices and practices. Because the two statutes are not in conflict, the legislature did not preclude the use of § 44-1991 for real property security violations and the state had the option of prosecuting under either.
O'Brien argues that for several reasons it was error to admit his testimony from a deposition before the Arizona Corporation Commission Securities Division. The transcript was not listed as a...
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