Van Duyse v. Israel

• Decision Date: 15 April 1980
• Docket Number: Civ. A. No. 78-C-740.
• Parties: Francis D. VAN DUYSE, Petitioner, v. Thomas R. ISRAEL, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

486 F. Supp. 1382

Francis D. VAN DUYSE, Petitioner, v. Thomas R. ISRAEL, Respondent.

Civ. A. No. 78-C-740.

United States District Court, E. D. Wisconsin.

April 15, 1980.

COPYRIGHT MATERIAL OMITTED

Francis D. Van Duyse, petitioner, pro se.

Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION AND ORDER

REYNOLDS, Chief Judge.

Petitioner Francis D. Van Duyse, an inmate at the Wisconsin State Prison at Waupun, has petitioned this court for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Specifically, petitioner challenges his 1974 conviction of ten counts of fraud in the sale of securities in violation of § 551.41(3), Wis.Stats. The following statement of facts is largely taken from petitioner's brief on appeal to the Wisconsin Supreme Court.

Petitioner was the owner and founder of a football newspaper, Pro Football Exclusive. In an effort to underwrite the planned nationwide expansion of this newspaper, petitioner contracted with a number of persons from Waukesha County whereby they would pay him a certain sum of money in return for petitioner's promise to repay the money plus very substantial interest. Petitioner, in fact, repaid very little of the money that was given to him by the persons in Waukesha County. These transactions took place in the spring and summer of 1970.

On August 3, 1972, and January 11, 1973, criminal complaints were filed charging petitioner with sixteen counts of theft by fraud in violation of § 943.20(1)(d), Wis. Stats., and forty-eight counts of violations of the Wisconsin Uniform Securities Law, specifically, twelve violations of § 551.21, Wis.Stats., sale of unregistered securities; twelve violations of § 551.31, transacting business without a license; and twelve violations of §§ 551.41(2) and (3), misrepresentation and fraud in the sale of securities. Several of these charges were ultimately dropped, and petitioner was tried on ten counts of theft by fraud, ten counts of fraud in the sale of securities, and one count of sale of unregistered securities.

Petitioner exercised his right to represent himself although indigent and entitled to have counsel appointed to represent him. At various points in the proceedings, however, the county court appointed "stand by" counsel to provide petitioner with legal advice. Bail was set at $50,000 and subsequently was increased to $51,500. At all times between his arrest and his conviction—from early August 1972 until June 18, 1973—the defendant was incarcerated in the Waukesha County jail, being unable to make bail.

Petitioner filed a number of pretrial motions on his own behalf. Several of these motions were designed to attack the conditions of his confinement at the Waukesha County jail. Petitioner asserted that his mail was being read, that he was being denied access to the telephone and law books, that the authorities were seizing his legal materials, and that he was being denied adequate medical care. Petitioner was granted certain relief as a result of these motions, specifically, an order allowing him to use the telephone and prohibiting the reading of his mail. Petitioner's motions for a change of venue and for dismissal for lack of probable cause were denied.

At trial, petitioner nominally represented himself, although his "stand by" counsel conducted most of the proceedings. The State was represented by an appointed special prosecutor.

The State's evidence consisted primarily of a series of witnesses who testified that they had invested money in petitioner's football newspaper. Each of the witnesses had been contacted by petitioner in Waukesha in the spring and summer of 1970 and asked to enter into a contract with petitioner. The contracts required that persons invest a sum of money which was to be returned over a twenty-four month period, with payments being made every month. The rate of return upon these investments was to be 270 per cent per year. Most of the investors received no return whatsoever, although several received one or two monthly payments.

Petitioner informed the investors that he needed the money to expand the newspaper into other states. Many of the investors were told that the newspaper was making a good profit and that the investment was sound. None of the investors requested to see financial data regarding the newspaper, and the investments were made entirely upon the word of the petitioner. Each witness testified that he or she trusted petitioner and thought nothing improper about the contract and investment until petitioner was unable to make the promised payments.

Also called to testify by the prosecution was the printer who printed Pro Football Exclusive in Green Bay. This witness testified that he printed seven monthly editions of the paper from April to October 1969, ranging from 2,300 to 6,700 copies per issue. He further indicated that he printed an issue in July 1970 with a run of 10,000 copies and a special issue for distribution in Minnesota. The printer also testified that in late 1969, petitioner switched printers in order to reduce his costs.

Following the close of the State's case, the charge of violating § 551.21 was dismissed. The defense rested without offering any evidence.

The jury, after having been duly instructed, returned a verdict of not guilty as to each of the ten counts of theft by fraud and guilty as to each of the ten counts of fraud in the sale of securities. Following the denial of motions after the verdict, the Court entered judgment upon the verdict and withheld sentencing. Petitioner was placed on probation for a period of five years on each count, to be served concurrently, and was ordered to make restitution in the amount of $10,050 plus interest from the time of receiving the funds.

Petitioner filed a pro se appeal with the Wisconsin Supreme Court, which appeal was dismissed for failure to properly perfect. Petitioner subsequently moved for post-conviction relief in Waukesha County Court, which motion was denied. Petitioner's probation was revoked in 1978, and he was sentenced to a term of seven years, which sentence is currently being served at Waupun. Additional facts will be referred to below.

Petitioner raises a number of issues with respect to his conviction. The greatest reliance, however, is placed on the contention that the State did not produce sufficient evidence to sustain his conviction. Petitioner correctly points out that the recent United States Supreme Court decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires federal courts on habeas review of state convictions to determine whether there was sufficient evidence to justify a rational trier of fact to find guilty beyond a reasonable doubt. This standard is novel with respect to federal review of state court convictions, and the Supreme Court in Jackson attempts to provide guidelines as to how this standard is to be applied.

Prior to Jackson, federal courts were only required to determine whether there was any evidence to support a state court conviction. See Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Sufficiency of the evidence beyond that minimum was not considered to be a constitutional question but rather a matter of state substantive law to be left to the state appellate courts. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1968), however, established that the due process clause prohibits the criminal conviction of any person except upon proof beyond a reasonable doubt. The Supreme Court in Jackson held that Winship required more than an inquiry into whether there was any evidence to support a conviction and should be interpreted as requiring an explicit inquiry into the sufficiency of the evidence allegedly supporting a challenged conviction.

The Court in Jackson emphasized that the newly enunciated standard of review did not require the federal courts to usurp the traditional role of the trier of fact. The test is not whether the reviewing court would have convicted the petitioner on the basis of the evidence presented at trial. Instead, the question is whether, taking all the evidence in the light most favorable to the prosecution, a rational trier of fact could have fairly determined that the accused was guilty beyond a reasonable doubt. The standard, in other words, is similar to that utilized by the federal appeals courts in reviewing convictions obtained in the district courts. See, e. g., United States v. Tucker, 552 F.2d 202 (7th Cir. 1977). This requires that there be "substantial" evidence to support a challenged conviction. Tucker, supra, at 210-211. It is with these standards in mind that this Court has evaluated the evidence presented in the instant case.

Before it can be determined whether the evidence supports the convictions, however, it must first be determined what elements must be proved in order to convict. Petitioner was convicted of violating § 551.41(3), Wis.Stats., which provides:

"It is unlawful for any person, in connection with the offer, sale or purchase of any security in this state, directly or indirectly:

* * * * * * "(3) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person."

It is uncontested that the investment contracts sold by petitioner were securities within the meaning of the statute. The issue on which the parties disagree is whether specific intent must be established in order to obtain a conviction on this charge. Petitioner argues that the State was required to prove that he intended to defraud the persons who invested with him, while the State contends that it was merely required to show that petitioner's conduct was "willful." While it is not altogether clear just where the distinction lies, it appears that petitioner would require that the State prove that he entered into the investment contracts with...