State v. Lefevre
| Decision Date | 21 July 1998 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 193 Ariz. 385,972 P.2d 1021 |
| Parties | STATE of Arizona, Appellee, v. Elaine G. LEFEVRE, Appellant. 97-0158. |
| Court | Arizona Court of Appeals |
¶1 Elaine G. Lefevre ("Defendant") appeals her conviction and sentence on one count of second-degree money laundering, a class 3 felony, in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-2317. Her sole argument on appeal is that Arizona's money laundering statute is unconstitutionally vague because, by imposing criminal liability on those who merely have "reason to know" that they are dealing with the proceeds of an offense, the statute fails to give adequate notice of the specific type of conduct that it prohibits. For the reasons that follow, we reject this argument and affirm Defendant's conviction and sentence.
¶2 In 1988, separate owners of two parcels of land in Northwest Phoenix applied to the Phoenix City Council for rezoning to permit commercial use of their properties. Pursuant to the city's zoning procedure at the time, all zoning applications were subject to a three-tiered review. First, an urban village planning committee, appointed by the City Council and composed of volunteers who resided in the "urban village" in which the property was located, would review the application and make a recommendation to the Phoenix Planning Commission. The Phoenix Planning Commission, in turn, would review the application and make its own recommendation to the City Council, which would then make the final determination.
¶3 The properties at issue in this case are both located at the intersection of 43rd Avenue and Pinnacle Peak Road in Phoenix. A limited partnership known as the Dartmouth Group owned the parcel on the northeast corner. Ben Friedman ("Friedman") and Tom Lynch served as general partners of the Dartmouth Group. The Shores at Rainbow Lake ("The Shores"), a corporation, owned the other parcel on the northwest corner. The Shores' owners, Tom Cavanagh and Don Liem, retained Paul Gilbert ("Gilbert"), a Phoenix zoning attorney, to represent them in the rezoning application process.
¶4 Because the parcels were located in the Deer Valley urban village, both the Dartmouth Group and The Shores submitted their rezoning applications to the Deer Valley Village Planning Committee ("DVVPC") for its initial review and recommendation. Defendant was a member of the DVVPC. An elementary school teacher and unsuccessful candidate for City Council, Defendant was also an active and vocal opponent of commercial development in the area.
¶5 In April 1988, Friedman met with Gilbert and his clients to discuss possible cooperation between the Dartmouth Group and The Shores in rezoning their respective properties. Because The Shores' initial efforts to rezone its property had "alienated" the residents of the surrounding area, Friedman agreed that the Dartmouth Group would work with the neighborhood, through Defendant, to attempt to reach an acceptable compromise on both rezoning applications.
¶6 At a meeting of the Phoenix Planning Commission on June 22, 1988, Friedman informed Gilbert that he had had a discussion with Defendant concerning her position on the rezoning applications. According to Friedman, Defendant told him that she would not oppose the rezoning application for either property if, in addition to other conditions, the Dartmouth Group and The Shores each contributed $50,000 to charities of her choosing. Friedman then gave Gilbert an envelope on which he had summarized his conversation with Defendant.
¶7 Defendant was also present at that Phoenix Planning Commission meeting. Immediately after talking to Friedman, Gilbert approached Defendant, told her that Friedman had conveyed her offer, and asked her, "[I]s this correct?" Defendant responded, "Yes." Later that evening, Gilbert dictated a letter to his clients, informing them of Defendant's proposal and conveying his impression that Friedman was "willing to consider it."
¶8 The record suggests, however, that, by June 22, 1988, Friedman had done more than merely "consider" Defendant's proposal. On May 25, 1988, Defendant opened a deposit account at Valley National Bank under the name "Andon Enterprise," with all fees on the account to be paid from an account owned by the Dartmouth Group. Two days later, the bank deposited an $11,700 check, signed by Friedman and drawn on the Dartmouth Group's account, into the Andon account. Over the next ten months, Friedman wrote nine checks to the Andon account, each for $2000. Total deposits into the Andon account equaled $29,700.
¶9 Defendant, in turn, withdrew money from the Andon account for her personal use. For example, four days after the bank deposited the $11,700 check, Defendant withdrew $9702 in the form of a cashier's check, which she then deposited in a joint account she held with her husband at a local credit union. Defendant also made numerous ATM cash withdrawals from the Andon account.
¶10 One of the owners of The Shores, Tom Cavanagh, eventually informed the Maricopa County Attorney of Defendant's statements to Friedman. The County Attorney's Office began a criminal investigation in 1989, but did not indict Defendant until 1994. The indictment charged Defendant with three counts of bribery in violation of A.R.S. section 13-2602. The three bribery counts arose from Defendant's conversation with Friedman during which she suggested that Friedman, Tom Cavanagh and Don Liem contribute $50,000 to charities she supported. The indictment further charged Defendant with one count of second-degree money laundering in violation of A.R.S. section 13-2317(A). This count arose from Defendant's receipt of the money in the Andon account. The indictment also named Friedman as a co-defendant, charging him with one count of bribery of Defendant, a public servant.
¶11 Defendant and Friedman were tried together. Although Defendant admitted that she made the alleged statement about the $50,000 contributions, she maintained that the statement was meant as a joke and that she never intended that it be taken seriously. Concerning the $29,700 deposited into the Andon account by Friedman, both Defendant and Friedman testified that the money represented an advance on a finder's fee paid to Defendant, who had agreed to assist Friedman in finding a buyer for a $23 million parcel of commercial property he owned near the Deer Valley Airport.
¶12 The jury acquitted Defendant of all bribery charges, but convicted her of money laundering. It also convicted Friedman of bribing Defendant. The trial court suspended Defendant's sentence and placed her on three years' probation. She timely appealed her conviction and sentence to this court. We have jurisdiction pursuant to Article VI, Section 9 of the Arizona Constitution and A.R.S. sections 12-120.21, 13-4031, and 13-4033(A).
Is the Arizona money laundering statute unconstitutionally vague because the words "reason to know" fail to provide a fair warning of what conduct is prohibited and provide no standard for the adjudication of guilt?
¶13 The version of the money laundering statute in effect at the time of Defendant's offense read:
A person who acquires or maintains an interest in, transfers, transports, receives or conceals the existence or nature of racketeering proceeds knowing or having reason to know that they are the proceeds of an offense is guilty of money laundering in the second degree.
A.R.S. § 13-2317(A) (1988) (emphasis added). 2 The statutory definition of racketeering includes bribery. See A.R.S. § 13-2301(D)(4)(f). Thus, the "racketeering proceeds" at issue in this case were Friedman's bribery payments to Defendant, and Defendant was convicted of receiving those proceeds "knowing or having reason to know" that Friedman intended the money as a bribe.
¶14 Defendant's sole argument on appeal is that her conviction is void because the money laundering statute is unconstitutionally vague. Specifically, she maintains that the phrase "having reason to know" fails to give any meaningful guidance concerning the mens rea necessary to commit the offense of money laundering. In fact, according to Defendant, the use of the phrase "having reason to know" in the statute transforms the offense from one requiring a mens rea of knowledge into one of strict liability. That is, as long as objective facts exist from which a person could deduce that she was receiving the proceeds of an offense, that person is guilty of money laundering under the statute, even if she had no actual suspicion that she was receiving "dirty" money.
¶15 As a threshold matter, we note that Defendant failed to raise her constitutional challenge before the trial court. Normally, failure to raise a claim at trial waives appellate review of that claim, even if the alleged error is of constitutional dimension. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). However, when, as here, a defendant claims that a statute is unconstitutionally vague, we may consider that claim for the first time on appeal. State v. Ochoa, 189 Ariz. 454, 459, 943 P.2d 814, 819 (App.1997), cert. denied, --- U.S. ----, 118 S.Ct. 868, 139 L.Ed.2d 765 (1998); State v. Junkin, 123 Ariz. 288, 290, 599 P.2d 244, 246 (App.1979), cert. denied, 444 U.S. 983, 100 S.Ct. 489, 62 L.Ed.2d 411 (1979).
¶16 Of course, we may address a constitutional challenge to a statute only if ...
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