IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON APRIL SESSION, 1997
FILED STATE OF TENNESSEE, ) July 3, 1997 ) No. 02C01-9609-CC-00313 Appellee ) Cecil Crowson, Jr. ) MADISON COUNTY Appellate C ourt Clerk vs. ) ) Hon. FRANKLIN MURCHISON, Judge ERNEST VICKERS, III, ) ) (One count of false filing Appellant ) with the Commissioner of the Tennessee Department of Commerce and Insurance; five counts of securities fraud; five counts of theft)
For the Appellant: For the Appellee:
DANIEL D. WARLICK CHARLES W. BURSON 611 Commerce Street Attorney General and Reporter Suite 2712, The Tower Nashville, TN 37203 ALBERT L. PARTEE, III Senior Counsel Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493
DENNIS GARVEY Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0492
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Ernest Vickers, III, was convicted by a Madison County jury of
one count of filing a false document with the Commissioner of the Tennessee
Department of Commerce and Insurance, Tenn. Code Ann. § 48-2-121(c); five counts
of securities fraud, Tenn. Code Ann. § 48-2-121(a); and five counts of theft, Tenn. Code
Ann. § 39-14-103. The eleven judgments of conviction reflect sentences for class C, D,
and E felonies. 1 In this appeal as of right, the appellant contends that:
I. He was denied his constitutional right to a speedy trial;
II. His convictions in the instant case are barred by the doctrine of collateral estoppel;
III. The trial court erred by refusing to charge the jury the defense of "advice of counsel;” and
IV. A material variance existed between counts four and five of the indictment and the proof at trial.
After a review of the record, we conclude that the appellant's contentions are
without merit. The judgment of the trial court is affirmed.
I. Background
Although the appellant does not challenge the sufficiency of evidence, a review
of the history of this case is helpful to our consideration of the issues presented. In
1991, the appellant and his wife, Jacqueline Vickers, were indicted on thirty-four counts
of securities fraud and theft offenses occurring between December 10, 1987, and
September 28, 1990. These charges arose from the appellant's management of an
1 The appellant received varying split confinement sentences in each of the convictions, with all sentences to run concurrently. His effective period of incarceration is 11 months and 29 days in the county jail.
2 investment company, First National Bancshares Financial Services, Inc. ("Financial
Services").2 The appellant organized Financial Services to permit him to borrow money
from the general public by issuing uninsured certificates of investment or “bancshares
certificates.” The certificates of investment were marketed and sold from an office
located in the appellant's bank, First National Bank of Jackson. The appellant’s
convictions for securities fraud stem from the use of various schemes and devices to
induce prospective investors to purchase certificates of investment from Financial
Services.
The principle scheme employed by the appellant was the issuance of a
“prospectus” to the investing public which overstated the assets of Financial Services
and generally misrepresented the financial condition of the investment company.
Through his deception, the appellant was able to convince, in particular, the customers
of First National Bank of Jackson, many of whom invested their lifetime savings, to
purchase the Financial Services certificates, which were designed to resemble the
bank-issued certificates of deposit. The appellant then directed the investors' money
into another corporation, First National Bancshares Corporation, a holding company,
from which he was able to provide himself with personal loans totaling approximately
3.3 million dollars. The appellant's fraudulent and deceptive practices were ultimately
discovered. At the request of the Commissioner of Commerce and Insurance, Financial
Services was placed in receivership and a receiver was appointed on September 28,
1990. The receiver testified that the assets of Financial Services consisted of four
vehicles, two of which were in storage, a boat, and a trailer. On this same date, it was
determined that Financial Services owed in excess of 3 million dollars, including 1.8
million owed to its individual investors. The non cash assets, primarily represented by
accounts and notes payable by the appellant and his wife, were essentially worthless.
2 The appellant was the sole stockholder of the First National Bank of Jackson, First National Bancshares Financial Services, and a holding company, First National Bancshares Corporation.
3 In 1990, an attempt was made by the appellant to negotiate the sale of First National
Bank of Jackson in order to cover all outstanding certificates of investment in Financial
Services. Efforts to sell the bank proved unsuccessful, the contract for the sale
expiring one day before the State filed receivership action.
The appellant was also indicted in Henderson County on similar charges of filing
false documents, securities fraud violations, and theft.3 These charges arose from the
sale of Financial Services’ “bancshares certificates” in Henderson County. Similar
schemes were employed to defraud investors in both Henderson and Madison
Counties. The Henderson County charges resulted in an 18 count indictment. A
mistrial was declared as to one count of false filing due to the jury’s inability to reach a
verdict. The jury acquitted the appellant of the remaining 17 counts.
The chronological history of this case, as relevant to the present appeal, follows:
12-10-91 Indictment 91-1209 returned by a Madison County Grand Jury charging the appellant with 34 counts of securities fraud and theft.
9-28-92 Indictment 92-927 returned, “superseding” 91- 1209, by Madison County Grand Jury charging the appellant with 34 counts of securities fraud and theft.4
10-5-92 Indictment returned by Henderson County Grand Jury on related charges arising from the appellant's business practices in Henderson County.
2-1-93 “Superseding” indictment obtained in Henderson County.
2-11-93 The appellant moved for a speedy trial.
3-29-93 Henderson County indictment amended, 93- 095.
3 Also indicted in Henderson County was the appellant’s wife, Jacqueline Vickers, and W illiam J. Bo one , his ac cou ntan t.
4 W e note that both the State and the appellant refer to the later issuing indictments as “supers eding” indictm ents . The rec ord d oes reflec t that bo th the 199 1 an d 19 92 ind ictm ents contained 34 c ounts. The record before u s fails to indicate when the 1 991 indictme nts were actually dismissed.
4 3-11-93 Hearing held on motion for speedy trial.
6-21-93 Motion for speedy trial denied.
3-3 to 21-94 Henderson County charges tried. The appellant was acquitted of all counts, except for one, which resulted in a mistrial.
12-15-94 Motion to dismiss Madison County indictment on grounds of double jeopardy and speedy trial.
2-24-95 Two attorneys from Attorney General's Office appointed special assistant district attorneys to prosecute Madison County case.
1-3-95 Hearing on motion to dismiss.
5-11 & 12-95Motion to dismiss Madison County indictment overruled.
8-8 to 19-95 Trial in Madison County, State proceeded to trial on 11 counts: 6 securities fraud and five theft. Jury returned convictions on all counts.
9-22-95 Sentencing hearing.
10-20-95 Motion for new trial.
4-22-96 Motion for new trial denied.
11-6-95 Judgments of conviction entered.
II. Right to a Speedy Trial
The appellant first contends that he was denied his constitutional and statutory
right to a speedy trial. See U.S. CONST . amend. VI; TENN. CONST . art. I, sec. 9; Tenn.
Code Ann. § 40-14-101 (1990); Tenn. R. Crim. P. 48. As basis for this contention, the
appellant argues that he was originally indicted in December 1991, for offenses
occurring between December 10, 1987, and September 28, 1990. The appellant's trial
in Madison County began on August 8, 1995, resulting in a lapse of three years and
5 nine months between indictment and trial. He contends that, due to this delay, he
suffered undue prejudice in preparing and presenting his defense. 5
The speedy trial guarantee of the Sixth Amendment is designed to "minimize the
possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while released on bail, and to
shorten the disruption of life caused by arrest and the presence of unresolved criminal
charges." United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502 (1982).
The right to a speedy trial attaches at the time of arrest or indictment, whichever comes
first, and continues until the date of the trial. United States v. Loud Hawk, 474 U.S.
302, 310-312, 106 S.Ct. 648, 653-654 (1986). This right, however, does not apply
during time periods when charges have been dismissed. MacDonald, 456 U.S. at 8-9,
102 S.Ct. at 1502. The appellant correctly argues that he was originally indicted on
December 19, 1991. However, these charges were later dismissed, as they were
“superseded” by a later indictment, 92-927, returned on September 28, 1992. See
supra note 4. Counts 1 through 10, 13 through 16, and 19 through 34, of the
“superseded” indictment allege that “the statute of limitations is tolled from December
19, 1991 until September 28, 1992.” Thus, as to these counts, the appellant’s right to a
speedy trial attached on December 19, 1991, causing a delay of approximately three
years and nine months between the return of the indictment and the trial. However, his
right to a speedy trial for the remaining counts, 11, 12, 17, and 18, did not attach until
September 28, 1992, causing a delay of approximately two years, eleven months.
When a defendant contends that he was denied his right to a speedy trial, the
reviewing court must conduct a four part balancing test to determine if this right was,
5 W e note that the transcript of the hearing on the m otio n fo r speedy trial is not included in the record for our review. The appellant is required to have prepared an adequate record in order to allow meaningful review on appeal. Tenn. R. App. P. 24. An appellate court cannot consider an iss ue w hich is not preserve d in the reco rd for review . State v. Banes, 874 S.W .2d 73 (Tenn. Ct. Crim. App. 1993). Nonetheless, because the motion for speedy trial, the orders denying the m otion, and the State's response to the m otion are included in the record, we deem the record adequate for appellate review.
6 indeed, abridged. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).
This test includes consideration of (1) the length of the delay; (2) the reasons for the
delay; (3) the defendant's assertion of his right; and (4) the actual prejudice suffered by
the defendant because of the delay. 6 Id.
The length of the delay between indictment and trial is a threshold factor, and, if
that delay is not presumptively prejudicial, the other factors need not be considered.
Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The delay in the present case was, at most,
three years and nine months. Supra. While the length of delay, in and of itself, does
not constitute a denial of a speedy trial given the complex nature of the charges, a
delay of one year or longer "marks the point at which courts deem the delay
unreasonable enough to trigger the Barker inquiry." Doggett v. United States, 505 U.S.
647, 652, 112 S.Ct. 2686, 2691, note 1 (1992). Thus, the delay in this case requires
further review.
Next, we inquire as to the reasons for the delay. Possible reasons for the delay
are said to fall within four identifiable categories: (1) intentional delay to gain a tactical
advantage over the defense or delay designed to harass the defendant; (2)
bureaucratic indifference or negligence; (3) delay necessary to the fair and effective
prosecution of the case; and (4) delay caused, or acquiesced in, by the defense. State
v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996).
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered. . . . Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
6 In State v. Bishop, 493 S.W .2d 81 (Tenn. 1973), our supreme court implicitly adopted the Barker balancing test for purposes of o ur sta te c onstitu tion al and sta tuto ry right to a speedy trial.
7 In the present case, the delay arose from the complex nature of the charges and
the need for judicial economy. Specifically, in the June 21, 1993, order denying the
appellant's motion, the trial court determined that "a subsequent indictment, returned in
Henderson County. . .would lead to a shorter trial and be more convenient to try and
was set for trial on August 3, 1993." Furthermore, on May 11, 1995, the trial court
overruled the appellant's motion to dismiss his case for lack of a speedy trial,
acknowledging that:
. . .[A]lthough there has been a long delay since the indictment was returned, the length of the delay under the circumstances is not unreasonable and neither defendant has been materially prejudiced. The attorneys on both sides have been diligent, but it has been difficult to coordinate the scheduling of this case in light of the expected trial. Both this judge and the attorneys on all sides have done the best that we could with this case and its companion case in Henderson County. The companion case took four . . . weeks to try in 1994, causing 30-40 cases to be bumped on this judge's docket.
We conclude that the reason for the delay, in the present case, was neutral and valid in
nature and should be weighed less heavily against the State.
The third prong of the balancing test, the defendant's assertion of his right to a
speedy trial, was initially satisfied by the appellant's motion demanding a speedy trial on
February 11, 1993. The defendant's assertion of this right weighs in favor of his claim.
Wood, 924 S.W.2d at 347 (citing Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93;
Bishop, 493 S.W.2d at 85).
Our consideration of the remaining factor, whether the defendant was prejudiced
by the delay, focuses upon (1) any undue and oppressive incarceration; (2) the anxiety
accompanying a public accusation; and (3) any impairment of the defendant’s ability to
prepare his defense. State v. Kolb, 755 S.W.2d 472, 475 (Tenn. Crim. App. 1988).
The record does not demonstrate any oppressive pretrial incarceration, as the appellant
was released on bail pending trial. Furthermore, there is no evidence that the appellant
suffered undue anxiety and concern while awaiting trial. However, the most important
8 inquiry remains, i.e., whether the delay impaired the defendant's ability to prepare a
defense.
The appellant contends that he has been "severely prejudiced by the delay," in
that (1) a key principal witness died prior to trial; (2) the State tried essentially the same
case in Henderson County, thereby, learning the appellant's defense; and (3) the
elapsed time clouded the memory of witnesses. First, we note that the cases in
Henderson and Madison Counties were not the same, in that they involved different
dates, different victims, different transactions, different prospectuses and different
venues. See, infra Section III. Next, as to his claim that the witnesses suffered
memory loss, the appellant urges this court to take judicial notice of the fact that it is
difficult, if not impossible, to remember particulars from simple business transactions
five years after they have transpired. The record shows no loss of memory by the
witnesses. Third, the appellant argues that he suffered extreme prejudice because his
attorney, Stanley Huggins, a material witness, died prior to the trial. The State
responds that Huggins' testimony, even if available, would not have been admissible as
it was not relevant to any issue raised at trial.
The appellant contends that Stanley Huggins would have testified that he
provided legal advice to the appellant in August 1990, which included the
implementation of a business plan to valuate and sell the principal asset of Financial
Services, i.e., First National Bank of Jackson. The appellant argues that the sale of the
bank presented a viable method of redeeming outstanding investors’ certificates. This
argument, however, demonstrates that Huggins’ testimony would have been irrelevant
in determining whether the appellant had, in fact, filed a false prospectus and then used
that prospectus to fraudulently obtain money from his victims. This proposed testimony
only deals with the failed effort of the appellant to sell an insolvent bank in the hopes of
paying off investors. The defense of "intent to return or repay" money or property has
9 been rejected by the courts of this and other jurisdictions. See Switzer v. State, 378
S.W.2d 760 (Tenn. 1964). See also United States v. Young, 955 F.2d 99 (1st Cir.
1992); United States v. Coin, 753 F.2d 1510, 1511 (9th Cir. 1995); United States v.
Angelos, 763 F.2d 859, 861 (7th Cir. 1985); State v. Joy, 549 A.2d 1033 (Vt. 1988).
Moreover, James G. Simmons, the potential buyer of the appellant's bank, testified at
trial that the sale of the bank collapsed on September 27, 1990, precluding the
possibility of repaying the victims. Thus, we cannot conclude that the appellant
suffered undue prejudice from Huggins' death. This issue is without merit.
III. Collateral Estoppel
In his next issue, the appellant contends that, because of his acquittal on
seventeen counts in Henderson County, the doctrine of collateral estoppel precluded
criminal prosecution in Madison County. Specifically, he contends that both indictments
alleged that the appellant, through his control of Financial Services, caused the filing of
false prospectuses which resulted in the felonious taking of investors’ savings. The
appellant concedes that the victims in the two counties were not the same, however,
he maintains that the underlying factual basis for all charges arose from a common
course of conduct and a single sequential course of doing business at Financial
Services. The State contends that the appellant has waived this issue because this
ground was not argued in the motion for new trial and because the appellant failed to
waive venue.7
7 W e note that, at the hearing on the motion for new trial, the appellant's trial counsel moved for a new trial upon "the law of the case" doctrine. Although he did not cite authority or phrase his issue as one of "collateral estoppel," he properly argued the principle of "collateral estoppel." Accordingly, we elect to address this issue on its merits.
10 The collateral estoppel effect attributed to the Double Jeopardy Clause of the
Fifth Amendment may bar a later prosecution for a separate offense "when an issue of
ultimate fact has once been determined by a valid and final judgment." Ashe v.
Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 1194 (1970). "Where a previous
judgment of acquittal was based upon a general verdict, as is usually the case, this
approach requires the court to examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter, and conclude
whether a rational jury could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration." Id. 397 U.S. at 444, 90
S.Ct. at 1194. See also State v. Allen, 752 S.W.2d 515, 516 (Tenn. Crim. App. 1988);
State v. Moore, 713 S.W.2d 670, 674 (Tenn. Crim. App. 1985).
However, an acquittal, in order to bar a subsequent prosecution for an offense,
must occur in the county in which the offense was committed.8 22 C.J.S. Criminal Law
§ 215; See also Tenn Const. art. I, sec IX. Accord State v. Wilson, No. 86-148-III
(Tenn. Crim. App. at Nashville, May 5, 1987). In the present case, the crimes were
committed in two separate venues, Madison and Henderson. No single court had
jurisdiction of the offenses. Thus, the doctrine of collateral estoppel is inapplicable to
this case. Moreover, the burden is on the appellant to prove by clear and convincing
evidence that, in the earlier trial, the court or a jury necessarily decided the issue of fact
which is an element at issue in the present indictment. See United States v. Bailey, 34
F.3d 683, 688 (8th Cir. 1994); see also United States v. Vaughn, 80 F.3d 549, 551
(D.C. Cir. 1996); Jacobs v. Marathon County, 73 F.3d 164, 167-168 (7th Cir. 1996).
The appellant has failed to carry this burden. This issue is without merit.
8 "The trial and conviction or acquittal in one county, of one charged with a criminal offense, is ord inarily no bar to an indictm ent for the sam e offe nse in a different c ounty unless it appears that the offense was comm itted in the county in which the former trial was had." 22 C.J.S. Criminal Law §215.
11 IV. "Advice of Counsel"
The appellant next contends that the trial court erred by refusing to charge the
jury with the defense of "advice of counsel." Specifically, he argues that "where all the
average businessman does is sign off on complex, complicated, legal documents
prepared by licensed CPAs and attorneys, the defense of 'advice of counsel' should be
available to the crime of false filing, absent a showing that the defendant misled or
misrepresented underlying facts to those professionals." The State maintains that the
appellant has waived this issue because trial counsel failed to submit any special
request in writing for a jury instruction as to this defense and because counsel later
voiced no objection to the charge as given by the judge. See Tenn. R. Crim. P. 30.
See also State v. Haynes, 720 S.W.2d 76 (Tenn. Crim. App, 1986). We agree.
Moreover, as the appellant concedes, our supreme court has previously ruled that the
"advice of counsel" defense is not a defense in Tennessee.9 Hunter v. State, 12
S.W.2d 361, 362 (Tenn. 1928); State v. Brewer, 932 S.W.2d 1, 17 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1996); State v. Smith, 656 S.W.2d 882, 888-889 (Tenn.
Crim. App. 1983). Accordingly, this issue is without merit.
V. Material Variance
In his final issue, the appellant contends that the trial court erred by failing to
dismiss counts four and five of the Madison County indictment, charging the appellant
with class C theft and securities fraud involving the victim, Sue Cox, on or about April
9 This court is without the authority "to revise, alter, modify, modernize or otherwise cha nge a com m on law rule create d by the Sup rem e Court." State v. Braden, 867 S.W .2d 750, 759 (T enn. Crim . App. 1993).
12 18, 1990, because of a material variance between the indictment and the proof
adduced at trial.10
When the evidence adduced at a trial does not correspond to the elements of
the offense alleged in the charging instrument, there is a variance. State v. Keel, 882
S.W.2d 410, 416 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994). Generally,
the evidence establishes the commission of an offense different from the offense
alleged in the charging instrument. Id. (citations omitted). The variance rule is
predicated upon the theory that an accused cannot be charged with one offense and
convicted of a completely different offense. Id.
The proof at trial established that, on April 18, 1990, Ms. Cox invested
$21,000.00 in a Financial Services’ bancshares certificate. She then permitted the
certificate to automatically renew on a monthly basis until it matured on August 21,
1990. On this date, Ms. Cox redeemed her original certificate, keeping a portion of the
accrued interest, and reinvested in a new certificate in the amount of $21,334.37.
Thus, the proof establishes two certificates, one issued in April and redeemed in
August, and a second issued in August. The appellant contends that these facts
10 Count four of the indictment reads:
. . . [T]hat on or abo ut the 18th day of April, 1990, in Ma dison Coun ty, . . . ERNEST VICKERS did knowingly obtain or exercise control over the personal property of Sue Cox, to wit, twenty-one thousand three hundred and thirty four and thirty-seven c ents ($21 ,334 .37) d ollars. . . .
Count five of the indictment reads:
. . . [T]hat on or about the 18th day of April, 1990, in Madison County, ERNEST VIC KE RS, d irectly or ind irectly th rough his agents and em ployees, d id unlawfully and willfully make an untrue statement of a material fact or omit to state a material fact necessary in order to mak e the statements made to Sue Cox, in light of the circumstances under which they were made, not misleading in connection with the sale of a security in the total amount of twenty-one thousand three hun dred and thirty-four and thirty-seven cents ($21 ,334 .37) d ollars. . . .
13 support a material variance because the indictment charges the appellant with
exercising control over the victim’s money in April with the intent to deprive, whereas,
the proof revealed that this certificate was redeemed in August. In effect, the appellant
argues that, if any taking occurred, it was in August not April. First, the appellant fails to
establish a claim of material variance. It is immaterial whether the taking occurred in
April or August, both dates being prior to the filing of the indictment. See Tenn. Code
Ann. § 40-13-207 (1990). The appellant was indicted in counts four and five for class C
and E felonies, respectively, and the proof addressed at trial supports these
convictions. Moreover, this issue is waived for failure to cite authority and failure to
properly brief the issue. See Tenn. R. App. P. 27(a)(4) - (a)(7). This issue is without
merit.
VI. Conclusion
After reviewing the record and the applicable law, we find the appellant's
contentions to be without merit. Accordingly, the judgments of the trial court are
affirmed.
14 ____________________________________ DAVID G. HAYES, Judge
CONCUR:
_______________________________ JOSEPH M. TIPTON, Judge
_______________________________ WILLIAM M. BARKER, Judge