State v. Thompson

• Decision Date: 09 March 1988
• Docket Number: No. 860357-CA,860357-CA
• Citation: 751 P.2d 805
• Parties: 1988-1 Trade Cases P 67,925, RICO Bus.Disp.Guide 6895 STATE of Utah, Plaintiff and Respondent, v. Michael C. THOMPSON, Bruce A. Conklin and Michael Ziemski, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 805

751 P.2d 805

1988-1 Trade Cases P 67,925, RICO Bus.Disp.Guide 6895

STATE of Utah, Plaintiff and Respondent, v. Michael C. THOMPSON, Bruce A. Conklin and Michael Ziemski Defendants and Appellants.

No. 860357-CA.

Court of Appeals of Utah.

March 9, 1988.

Max D. Wheeler, Rodney R. Parker (argued), Snow, Christensen & Martineau, Salt Lake City, for defendants and appellants.

David L. Wilkinson, State Atty. Gen., Stephen J. Sorenson, Chief, Litigation Div., Richard M. Hagstrom (argued), David J. Schwendiman (argued), Robert N. Parrish, Stanley H. Olsen, Asst. Attys. Gen., for plaintiff and respondent.

Before BENCH, DAVIDSON and ORME, JJ.

OPINION

BENCH, Judge:

Defendants appeal their convictions on several counts of bribery, antitrust, and racketeering. This appeal was initially filed with the Utah Supreme Court and was transferred to this Court pursuant to R.Utah S.Ct. 4A. We affirm the convictions.

Facts

Between 1976 and early 1984, L. Brent Fletcher was employed as security officer for Utah Power and Light Company (UP & L). As security officer, Fletcher's duties were to determine the security needs of the company, make recommendations to management, and act as coordinator between management and the security guard services. In 1978, UP & L decided to hire the services of a security guard company on a full-time basis. On Fletcher's recommendation, UP & L executed a contract with defendant Michael Thompson's company, Mike Thompson Associates (MTA), in February 1978. This contract was not competitively bid.

In 1979, Jack Wall, Fletcher's brother-in-law, was hired by MTA. At Fletcher's request, Wall opened a bank account in the name of Security Management Consultant Services. Between January and June 1979, Wall deposited approximately $23,000 in checks from MTA into this account. In June 1979, Wall turned over the account and its records to Fletcher at his request. UP & L and MTA renewed their contract in March 1981.

Thompson left MTA in 1982 and formed Information Associates, a security consulting firm, with defendant Bruce Conklin, a former employee of MTA. Defendant Michael Ziemski, also a former employee, took control of MTA and signed a new contract with UP & L in October 1982. Ziemski later changed the name of MTA to Vanguard International Associates, Inc. In 1983, Ziemski transferred control of Vanguard to Conklin. An assignment of the UP & L contract was executed in March 1984.

During the spring of 1983, Information Associates deposited approximately $25,000, in seven separate payments, into the account of Augie Investments, also owned by Fletcher. Meanwhile, Vanguard deposited about $163,000 into the account of Information Associates.

The State of Utah, alleging these multiple payments to Fletcher were bribes as part of a scheme to eliminate competition for the UP & L security contract, charged Thompson with seven counts of commercial bribery, each a class B misdemeanor in violation of Utah Code Ann. § 76-6-508(b) (1978), one count of antitrust group boycott, a second degree felony in violation of Utah Code Ann. §§ 76-10-914 and -920 (1979), and two counts of racketeering, second degree felonies in violation of Utah Code Ann. § 76-10-1603 (1981). Ziemski and Conklin were each charged with seven counts of bribery, one count of antitrust group boycott, and one count of racketeering. Fletcher, also a defendant, was charged with counts similar to Thompson. Fletcher was tried separately and convicted prior to defendants' trial. His appeal is also decided this date. See State v. Fletcher, 751 P.2d 822 (Utah App.1988).

Pretrial motions to dismiss all counts were denied. Defendants' motion to suppress evidence obtained pursuant to a secret investigation in Emery County was also denied. The case was tried to a jury on July 18 through August 1, 1985, the Honorable Judith M. Billings presiding. The jury found each defendant guilty of five counts of bribery and of all racketeering and antitrust counts. Motions for mistrial were denied. Thompson was sentenced to serve not less than one nor more than fifteen years in the Utah State Prison. Conklin and Ziemski were each sentenced to serve one year in the Salt Lake County Jail on work release. Each defendant was fined $25,000 for the antitrust violations. Based on the racketeering convictions, the court also ordered forfeiture of all business interests of defendants in the guard companies involved in the case. The sentences were all stayed pending appeal.

On appeal, defendants challenge the jurisdiction of the trial court and the court's denial of their motion to suppress certain evidence. Defendants also challenge specific jury instructions, each of their convictions, and the trial court's denial of their motion for a mistrial.

Jurisdiction and Probable Cause for Arrest

Defendants first argue the affidavit upon which their arrest warrants were based failed to establish probable cause. The arrest warrants were therefore allegedly invalid, and the trial court was deprived of jurisdiction over defendants. The Utah Supreme Court has "reject[ed] the position that the probable cause requirement for arrest warrants is jurisdictional." State v. Schreuder, 712 P.2d 264, 272 (Utah 1985). In Schreuder, the defendant challenged her conviction on the ground that the statement presented in support of the arrest warrant failed to establish the requisite probable cause. The Court, assuming lack of probable cause for the purposes of discussion, adopted the majority rule that an "illegal arrest or detention does not void a subsequent conviction." Id. at 271 (quoting Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54 (1975)). The Court explained:

[The] probable cause requirement for an arrest warrant becomes moot by the time a defendant has been convicted because the much more stringent requirements of proof at trial have been employed to protect the defendant.

712 P.2d at 272. In light of Schreuder, we hold defendants' challenge to the trial court's jurisdiction is moot.

Admissibility of Evidence

Defendants next argue the trial court erred in denying their motion to suppress certain evidence. The instant case began with a secret investigation conducted in Emery County under the authority of Judge Boyd Bunnell, Seventh District Court, and pursuant to Utah Code Annotated §§ 77-22-1 through -3 (1982), commonly referred to as the Subpoena Powers Act or the Utah Mini-Grand Jury Act. During the investigation, the prosecution used subpoenas duces tecum to accumulate most of the evidence used at trial, including tax and bank records from defendants' accountants and banks. Upon a motion by defendants challenging the constitutionality of the Act, Judge Bunnell concluded the Act had been abused and was subject to continual abuse due to its broad terms and provisions. Judge Bunnell declared the Act unconstitutional, dismissed the investigation, and quashed all outstanding subpoenas. The prosecution's appeal of that ruling is now pending before the Utah Supreme Court. In the Matter of a Criminal Investigation, No. 20268 (Utah filed Oct. 25, 1984).

Based on Judge Bunnell's ruling, defendants filed a motion to suppress all evidence seized pursuant to the investigation. After a hearing on December 27, 1984, Judge Billings held Judge Bunnell's ruling to be the law of the case. However, in a memorandum decision dated January 10, 1985, Judge Billings denied defendants' motion to suppress. The evidence was subsequently admitted to prove the substance of the crimes charged.

The basis for the trial court's denial of defendants' motion to suppress was as follows:

The appropriate standard for suppression of the evidence acquired under the "Subpoena Powers Act" in this case requires that the defendants show, as the State contends, a "substantial violation" of defendants' constitutional rights and that the violation was "not committed in good faith," as required by Rule 12(g), Utah Rules of Criminal Procedure (Section 77-35-12(g)). Defendants have neither acknowledged this Rule, nor attempted to meet the required showing for suppression of evidence.

On appeal, defendants claim the evidence in the instant case was obtained without legal process and should therefore be suppressed. Defendants contend the government's actions were in violation of their individual rights to and expectations of privacy.

The enforcement of a subpoena duces tecum is subject to fourth amendment In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court created the good faith exception to the exclusionary rule: where an officer acts in objectively reasonable reliance on a subsequently invalidated warrant, the exclusionary rule does not apply. The Utah state legislature codified the Leon good faith exception in Utah Code Ann. § 77-35-12(g) (1982). As previously discussed, the trial court denied defendants' motion to suppress for failure to meet the requirements of section 77-35-12(g).

                restrictions against unreasonable searches and seizures, although not to the extent of a search warrant.   Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946).  Defendants' claims to an expectation of privacy are rights protected under the fourth amendment.   Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).  Furthermore, "[e]vidence is suppressed or excluded only if the same was obtained by a violation of the Fourth Amendment, designed to protect a person's right to privacy and property."   State v. Montayne, 18 Utah 2d 38, 41, 414 P.2d 958, 960 (1966)
                

However, the Utah Supreme Court recently invalidated section 77-35-12(g). In State v. Mendoza, 748 P.2d 181 (Utah 1987), the Court rejected the prosecution's argument that the good faith exception should apply to an invalid, warrantless stop and search of a vehicle. The Court explained that because "no outside authority on which the officers could...