State v. Cook

• Decision Date: 03 August 1995
• Docket Number: No. 1,CA-CR,1
• Citation: 916 P.2d 1074,196 Ariz.Adv.Rep. 17,185 Ariz. 358
• Parties: , Blue Sky L. Rep. P 74,064 STATE of Arizona, Appellant, v. Wade Bruce COOK, Appellee. 91-0760.
• Court: Arizona Court of Appeals

Page 1074

916 P.2d 1074

185 Ariz. 358, Blue Sky L. Rep. P 74,064

STATE of Arizona, Appellant, v. Wade Bruce COOK, Appellee.

No. 1 CA-CR 91-0760.

Court of Appeals of Arizona,

Division 1, Department A.

Aug. 3, 1995.

Reconsideration Denied Nov. 1, 1995.

Review Denied May 21, 1996.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Division, Linda L. Knowles, Assistant Attorney General, Warren J. Granville, Assistant Attorney General, Phoenix, for appellant.

Lewis and Roca by Edward F. Novak and Charles W. Steese, Phoenix, for appellee.

OPINION

EHRLICH, Judge.

In our first opinion in this case, we concluded that fines imposed on Wade Bruce Cook ("defendant") by the Arizona Corporation Commission for securities violations were penalties which precluded subsequent criminal prosecution for the same acts. State v. Cook, 177 Ariz. 595, 870 P.2d 413 (App.1993). We therefore affirmed the trial court's order dismissing the indictment. Id. The Arizona Supreme Court denied review. Subsequently, the United States Supreme Court granted certiorari, vacated the opinion and remanded the case in light of United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Arizona v. Cook, --- U.S. ----, 115 S.Ct. 44, 130 L.Ed.2d 6 (1994).

In Dixon, the Court overruled Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), in which it had held that the Double Jeopardy Clause of the Fifth Amendment, in addition to banning multiple prosecutions and punishments for crimes containing the same "elements" as defined in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), also barred "any subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at 521, 110 S.Ct. at 2093 (emphasis added). However, after Dixon, for purposes of the federal Double Jeopardy Clause, the single inquiry as to whether a person has been punished or prosecuted twice for the "same offense" again is the Blockburger same-elements test. See Hernandez v. Superior Court, 179 Ariz. 515, 519-20, 880 P.2d 735, 739-40 (App.1994).

In our original opinion, we held that the defendant could not be prosecuted for allegedly violating various securities laws for which the commission already had ordered him to make restitution in the amount of $390,841 and pay a $150,000 administrative penalty. We said that the administrative penalty constituted punishment and, thus, that any subsequent prosecution and punishment would violate the Double Jeopardy Clause. The parties never addressed and we never considered whether the defendant was being prosecuted for the same offenses for which the commission had imposed the administrative penalty. It was assumed that the criminal prosecution was based on the same acts for which the commission had imposed the penalty. On remand, we must determine whether the proposed prosecution will, under the Blockburger same-elements test, punish the defendant for the same offenses for which the commission imposed the administrative penalty.

FACTS

The facts are set forth in detail in the original opinion. In summary, in February 1989, the Securities Division of the Arizona Corporation Commission accused the defendant of selling unregistered securities, selling securities without a license and securities fraud, violations of Ariz.Rev.Stat.Ann. ("A.R.S.") sections 44-1841, 44-1842 and 44-1991, respectively. Following a hearing, the commission found that the defendant had committed these violations and ordered him to cease and desist from the sale of securities in Arizona, make restitution in the amount of $390,841 to a number of investors and pay a $150,000 administrative penalty.

Subsequently, the defendant was indicted for the same conduct which was the subject of the proceedings before the commission. The indictment includes eighteen counts: one count of violating A.R.S. section 13-2310 (fraudulent schemes or artifices); one count of violating A.R.S. sections 13-2312, 13-2301(D)(4)(s), (t), 13-301, 13-302, and 13-303 (illegal control of an enterprise); eight counts of violating A.R.S. section 44-1841 (sale of unregistered securities), with one of these counts, Count 7, including A.R.S. sections 13-301, 13-302 and 13-303; and eight counts of violating A.R.S. section 44-1842 (sale of securities by unregistered dealers or salesmen), with one of these counts, Count 15, also including A.R.S. sections 13-301, 13-302 and 13-303.

DISCUSSION

A. Whether the state has waived the right to assert that the defendant is not being prosecuted for the same offenses that were the subject of the administrative proceeding.

The defendant first raises the issue of waiver, arguing that the state never raised the question, either in the trial court or on appeal, whether he was being prosecuted for the same offenses. He maintains that the state cannot now argue that, even if the administrative penalty constitutes punishment, the criminal prosecution would not punish him for the same offenses for which he was punished by the commission. He asserts that it does not matter that the Court in Dixon overruled Grady because Grady would not have applied to his case. In other words, he argues that, even before Dixon was decided, the Blockburger test was the only test that applied in this case to determine whether he was being punished for the same offenses.

The defendant elaborates on his argument by noting that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). He points out that he has continually argued that the criminal prosecution in this case would constitute multiple punishments for the same offense and that Halper, upon which we relied in our original opinion, indicated that multiple punishment was at issue when a civil penalty was imposed in addition to a criminal penalty. Id. He then cites State v. Nunez, 167 Ariz. 272, 275-76, 806 P.2d 861, 864-65 (1991), for the proposition that, even before Dixon, Grady only applied to cases involving successive prosecutions and that only the Blockburger test applied to cases involving multiple punishments. Thus, he insists that the demise of Grady is immaterial and that the state should have asserted in the trial court and on appeal, as it now contends on remand, that only the Blockburger test applied to this case and that, under Blockburger, the criminal prosecution would not punish the defendant for the same offenses for which he was punished by the commission.

We do not agree with the defendant that Grady would not have applied to this case had the issue been presented originally on appeal. The defendant argues that this case does not involve a successive prosecution because, as explained in Mullet v. Miller, 168 Ariz. 594, 596-97, 816 P.2d 251, 253-54 (App.1991), cert. denied, 502 U.S. 1122, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992), the proceedings before the commission were not prosecutions. While that may be true, it does not mean that Grady would not have applied to the subsequent prosecution in this case.

In Halper, because the criminal prosecution occurred first, the subsequent administrative proceedings were not automatically barred since the administrative proceedings were not a subsequent "prosecution" and may or may not have resulted in "punishment." The Double Jeopardy Clause was not implicated until the administrative proceedings resulted in a punishment. In this case, however, the administrative proceedings occurred first and resulted in punishment. Any subsequent criminal prosecution involving the same offenses, therefore, would be automatically barred by the Double Jeopardy Clause because a successful criminal prosecution could only result in punishment, making it unnecessary to go through the criminal prosecution to determine whether a "punishment" would result as is required in the reverse situation. In that sense, this case, as opposed to Halper, is just as much a successive prosecution case as it is a multiple punishment case.

This point specifically was addressed in Mullet in which the court explained that, once it was determined that the Corporation Commission imposed a punishment in the administrative proceeding, "the double jeopardy clause clearly prohibit[ed] a second proceeding to punish for the same conduct." 168 Ariz. at 598, 816 P.2d at 255 (emphasis added). Thus, at the time this case originally was heard, the Grady same-conduct test would have applied to determine whether the defendant was being prosecuted for the same offenses for which the commission had imposed the penalty even if we had found that the proceedings did not involve the same offenses under the Blockburger same-elements test. There simply was no question at the time the original appeal was decided that the two proceedings involved the same offenses. Accordingly, the state has not waived the argument it now presents on remand. Now, the Court in Dixon having overruled Grady, we must employ the Blockburger same-elements test to decide whether the proposed prosecution seeks to try the defendant for the same offenses for which the commission imposed the penalty.

B. Federal double jeopardy analysis.

The Blockburger same-elements test focuses on the statutory elements of the two crimes charged, not on the factual proof that is offered or relied upon to secure a conviction. Hernandez v. Superior Court, 179 Ariz. 515, 518, 880 P.2d 735, 738 (App.1994). See also Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980) ("Blockburger test focuses on the proof necessary to prove the statutory...