NOTICE: This opinion is subject to formal
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THE COURT OF APPEALS OF THE STATE OF ALASKA
CLINT D. KNIX, )
) Court of Appeals No. A-5621
Appellant, ) Trial Court No. 3AN-S93-7133CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
)
CONNIE J. KNIX, )
) Court of Appeals No. A-5634
Appellant, ) Trial Court No. 3AN-S93-9632CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1477 - August 2, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Sigurd E. Murphy, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant No. A-5621. Leslie
A. Hiebert, Assistant Public Advocate, and
Brant McGee, Public Advocate, Anchorage, for
Appellant No. A-5634. Elizabeth Vazquez,
Assistant Attorney General, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Codefendants Clint D. and Connie J. Knix appeal their
convictions of perjury, AS 11.56.200(a), engaging in a scheme to
defraud, AS 11.46.600(a)(2), and second-degree theft, AS 11.46.180
(a) and AS 11.16.110(2)(B), raising various constitutional claims
and statutory construction questions. We affirm the perjury and
scheme to defraud convictions but hold that the theft convictions
merge with the convictions for scheme to defraud.
Clint and Connie Knix applied for and received public
assistance from the State of Alaska, Division of Public Assistance
(DPA), from October 1991 through October 1992. From October 1991
through April 1992, the Knixes declared no income. Early in 1992,
DPA received an allegation of welfare fraud, which indicated that
the Knixes were earning income through a business venture called
"Scrumptious Sourdough." On May 21, 1992, DPA employee Guy
Swafford interviewed the Knixes concerning their business. During
the interview, Clint Knix acknowledged that the Knixes had
previously done business under the name Scrumptious Sourdough, but
he told Swafford that the business had made no sales and had earned
no income since September of 1991.
At Swafford's request, Clint Knix wrote out a statement
declaring that the Knixes had received no income from their
business venture from September 1991 through May 1992. Beneath
this declaration, Swafford wrote, "UNDER PENALTY OF PERJURY, THIS
IS A TRUE AND ACCURATE STATEMENT." Both Knixes signed and dated
the statement. Swafford, a notary public, then added his own
signature and affixed his notary seal.
Subsequent DPA investigation established that the Knixes
had in fact obtained substantial income, both from their business
and from other sources, while they were receiving public
assistance. For fraudulently claiming and obtaining welfare
benefits, the Knixes were charged with engaging in a scheme to
defraud and theft in the second degree; for submitting the false
sworn statement denying income, they were charged with perjury.
(EN1) Following a joint jury trial presided over by Acting
Superior Court Judge Sigurd E. Murphy, the Knixes were convicted of
all charges.
On appeal, the Knixes first argue that the evidence at
trial was insufficient to support their convictions for perjury.
The Knixes specifically argue that the state failed to prove that
their May 21, 1992, statement to Swafford qualified as a "sworn
statement" for the purposes of the perjury statute.
Under AS 11.56.200(a), "[a] person commits the crime of
perjury if the person makes a false sworn statement which the
person does not believe to be true." Alaska Statutes 11.56.240(2)
defines two forms of "sworn statement." For present purposes, we
need consider only the form of sworn statement defined in
subparagraph (2)(A) of the statute: "a statement knowingly given
under oath or affirmation attesting to the truth of what is stated,
including a notarized statement[.]" (EN2)
By its own terms, subparagraph (2)(A) requires this form
of sworn statement to be given under oath or affirmation. Under AS
09.63.010, oaths or affirmations may be taken by justices, judges,
and magistrates, by clerks of court or their deputies, or by
notaries, postmasters, and commissioned officers and municipal
clerks in certain circumstances. Under AS 09.63.030(a), any
officer authorized to administer an oath may notarize a document by
certifying "on the document that it was signed and sworn to or
affirmed before the officer." (EN3)
The Knixes point out that DPA employee Guy Swafford
testified at trial that he never actually administered an oath or
affirmation to the Knixes; and although Swafford affixed his notary
seal and signature to the Knixes' statement, he did not certify on
the statement "that it was signed and sworn to or affirmed before
[him]," as required under AS 09.63.030(a). Given Swafford's
failure to administer an oath or affirmation and his failure to
include a proper certification, the Knixes insist that their signed
statement to Swafford cannot properly be considered a sworn
statement as defined in AS 11.56.240(2)(A).
However, in Gargan v. State, 805 P.2d 998 (Alaska App.
1991), we considered an argument similar to the one advanced by the
Knixes. Relying on the Alaska Supreme Court's opinion in Anchorage
Sand and Gravel Co. v. Wooldridge, 619 P.2d 1014 (Alaska 1980), we
observed that, for purposes of determining whether a signed
declaration qualifies as a sworn statement, the crucial issue is
not whether an oath was actually given, but whether the signed
declaration amounts to "a verification on its face of the
truthfulness of the facts contained therein." Gargan, 805 P.2d at
1005. We concluded: "When the notary is present at the signing of
a document which purports to be sworn, and when the notary then
notarizes the document, the requirements of the oath have been
satisfied; the document qualifies as a sworn statement." Id.
The Knixes nevertheless say that Gargan is distin-
guishable. (EN4) They point out that, unlike Gargan, the signed
statement in this case does not certify on its face that the Knixes
were under oath and does not otherwise "purport[] to be sworn."
Id. at 1005. For these reasons, according to the Knixes, their
statement to Swafford cannot be construed as "a verification on its
face of the truthfulness of the facts contained therein." Id.
We disagree. As we have previously pointed out, a sworn
statement can be made under either "oath or affirmation attesting
to the truth of what is stated[.]" AS 11.56.240(2)(A). Although
the Knixes' statement does not on its face purport to have been
given under oath, it clearly does purport to have been given under
affirmation. "An 'affirmation' is a statement by which a person
signifies that he is bound in conscience to act truthfully. No
particular form of oath or affirmation is required by Alaska
law[.]" Anchorage Sand and Gravel Co., 619 P.2d at 1016. (EN5) On
its face, the written statement given to Swafford by the Knixes
declared that, "under penalty of perjury, this is a true and
accurate statement." By virtue of this language, the Knixes
plainly "signifie[d] that [they were] bound in conscience to act
truthfully." Id. This readily qualifies as an affirmation, and
its presence on the face of the notarized statement renders the
statement one that "purports to be sworn." Gargan, 805 P.2d at
1005.
Although Swafford did not expressly "certify on the [face
of the statement] that it was signed and sworn to or affirmed
before [him,]" AS 09.63.030(a), the inference that it was so
affirmed flows logically from the presence of the affirmation
itself, coupled with Swafford's signature seal of office. Alaska's
perjury statute specifically provides that "it is not a defense [to
a charge of perjury] that . . . the oath or affirmation was taken
or administered in an irregular manner." AS 11.56.200(b)(2). To
the extent that Swafford's certification failed to comply with the
formal statutory requirements governing certification of notarized
documents, the deficiency falls squarely within the realm of this
provision.
Cases from other jurisdictions support this conclusion.
The required certification for an affidavit, traditionally called
a jurat, is typically regarded as "merely a certificate of the due
administration of the oath. Its purpose is to evidence the fact
that the affidavit was duly sworn to before an officer authorized
to administer it." Craig v. State, 112 N.E.2d 296, 297 (Ind.
1953); see also Cintuc, Inc. v. Kozubowski, 596 N.E.2d 101, 104
(Ill. App. 1992) (holding that the jurat is not the affidavit, but
simply evidence of a properly sworn affidavit).
Errors or omissions in the jurat ordinarily will not
render void an otherwise valid affidavit. See, e.g., American Home
Life Ins. Co. v. Heide, 433 P.2d 454, 458 (Kan. 1967) ("If a
declaration has in fact been made under oath, it is an affidavit
although no jurat be attached.") (quoting James v. Logan, 108 P. 81
(Kan. 1910)); Land Clearance for Redevelopment Auth. of St. Louis
v. Zitko, 386 S.W.2d 69, 78 (Mo. 1964) ("the omission of a jurat
will not render a properly executed affidavit a nullity"); King v.
State, 320 S.W.2d 677, 678 (Tex. App. 1959) ("When a jurat on its
face is defective, the fact that it was properly sworn to may be
shown by other evidence.") (citing Stanzel v. State, 18 S.W.2d 158,
160 (Tex. App. 1929)).
The principal exception involves situations in which the
jurat is blank and the affidavit lacks both the notary's signature
and the official notary seal. In such cases, some courts have been
unwilling to allow extrinsic proof that the affidavit was in fact
executed in the presence of a notary. State v. Phippen, 244 N.W.2d
574 (Iowa 1976); Miller v. Palo Alto Bd. of Supervisors, 84 N.W.2d
38 (Iowa 1957).
In short, the superior court properly concluded that
sufficient evidence was presented at trial to allow the jury to
find that the written statement signed by the Knixes in Swafford's
presence on May 21, 1992, amounted to perjury: a "false sworn
statement which [the Knixes did] not believe to be true." AS
11.56.200(a).
The Knixes next assert that the trial court did not
properly elicit from them an on-record waiver of their right to
testify, as required under LaVigne v. State, 812 P.2d 217 (Alaska
1991). This claim lacks merit.
Prior to the conclusion of the Knixes' trial, Judge
Murphy conducted a painstakingly thorough on-record inquiry to
determine whether the Knixes wished to exercise their right to
testify at trial. During the inquiry, the Knixes made veiled,
conclusory references to threats that had purportedly been made to
them in connection with their contemplated exercise of the right to
testify. However, despite repeated efforts by the trial court to
delve into the nature of and circumstances surrounding the alleged
threats, despite a break in proceedings to allow the Knixes to
consult with their attorneys, and despite repeated assurances by
Judge Murphy that the court stood ready to hear further information
and to take appropriate curative action, the Knixes steadfastly
refused to substantiate their vague claim of threats or to divulge
any further information explaining their situation.
In response to questioning by Judge Murphy, each of the
Knixes' trial attorneys denied threatening their clients, professed
ignorance of any actual threats, and assured Judge Murphy that the
Knixes had been thoroughly apprised of their right to testify. But
defense counsel, too, spoke only in general terms: apparently
seeking to avoid a violation of the attorney-client privilege,
counsel declined to provide the court with any significant detail
or to shed meaningful light on the situation.
Upon completion of the inquiry by Judge Murphy, neither
the Knixes nor their attorneys requested any action or relief from
the court. The case proceeded, and neither Knix testified. In
spite of Judge Murphy's mid-trial offer of a post-trial inquiry
into the alleged threats, neither the Knixes nor their trial
attorneys ever requested a post-trial hearing. Now, however, the
Knixes complain that they were coerced into remaining off the stand
and that their waiver of the right to testify was involuntary.
The right to testify is undeniably one of the most
fundamental rights constitutionally secured to a person accused of
committing a crime. For this reason, the Alaska Supreme Court
stated in LaVigne that, before allowing a criminal trial to
conclude without the defendant taking the stand, the trial court
must carefully explain the defendant's right to testify, ascertain
that the defendant understands that the decision to exercise the
right rests with the defendant, and elicit a voluntary waiver of
the right. (EN6)
A trial judge faced with a defendant who, in the course
of this process, voices fears of reprisal as a consequence of
testifying -- even vague and insubstantial fears -- must do
everything realistically possible to delve into the issue and
elicit an informed, voluntary choice. To this end, the judge
should invite a full disclosure by the defendant and the
defendant's counsel of any purported threat, offer to invoke the
full weight of the court's protective powers against the source of
any threat, and conduct a thorough inquiry in response to any
information disclosed. The judge should also ensure that the
defendant has been provided an adequate opportunity to consult with
counsel concerning any potential threats or pressure and should
take appropriate measures in the event that an active conflict of
interest between client and attorney comes to light.
In the Knixes' case, Judge Murphy did all of the
foregoing, but to no avail. When the judge received no response to
his efforts, there was little else he could do. The inescapable
corollary of the fundamental right to testify is the equally
fundamental right to silence. Faced with the Knixes' persistent
refusal to elaborate on their situation, Judge Murphy confronted a
practical dilemma. On the one hand, the judge could hardly order
the unwilling Knixes to take the stand and testify in their own
defense. On the other hand, with nothing more than an
unsubstantiated hint of threats and repeated assurances by the
Knixes and their counsel that no further information was
forthcoming, the judge could hardly stop the trial in midstream.
As a practical and legal matter, Judge Murphy was powerless to do
anything but what he did: require the Knixes to choose among their
clearly explained options and to live with the consequences of
their choices. (EN7)
At this late date, still lacking any colorable evidence
to substantiate their claim of threat or any explanation for their
failure to air that claim before the trial court in a timely
manner, the Knixes cannot be heard to complain that their election
to remain silent was coerced. The Knixes' skeletal assertion of a
threat cannot sustain their challenge to the voluntariness of their
waiver. The record currently before us supports only one
conclusion: that both Clint and Connie Knix knowingly,
intelligently, and voluntarily declined to take the stand. We find
no LaVigne violation. (EN8)
The Knixes next argue that the trial court erred in
instructing the jury on the culpable mental state required for
conviction of the offense of scheme to defraud. The trial court
instructed the jury, in relevant part, that to prove the crime of
scheme to defraud, the state was required to establish that the
Knixes "knowingly engaged in conduct constituting a scheme" and
"that the scheme was to defraud one or more persons of $10,000[.]"
The Knixes now complain that the court should have instructed the
jury that the state was required to prove not just that the Knixes
knowingly participated in a scheme, but that they did so with
specific intent to defraud their victims.
Because the Knixes failed to object below to the elements
of the offense instruction for scheme to defraud, we review their
claim only for plain error. Hilbish v. State, 891 P.2d 841, 850
(Alaska App. 1995). A plain error is one that is both obvious and
obviously prejudicial. Id.; see also S.R.D. v. State, 820 P.2d
1088, 1095 (Alaska App. 1991) ("A plain error is an obvious one
that results in substantial prejudice."); Reischman v. State, 746
P.2d 912, 915 (Alaska App. 1987) ("In order to establish plain
error, the appellant must show that the error was obvious and
substantially prejudicial.").
Alaska's scheme to defraud statute, AS 11.46.600, does
not specify a culpable mental state:
(a) A person commits the crime of scheme to
defraud if the person engages in conduct
constituting a scheme
(1) to defraud five or more persons or to
obtain property or services from five or more
persons by false or fraudulent pretense,
representation, or promise and obtains
property or services in accordance with the
scheme; or
(2) to defraud one or more persons of $10,000
or to obtain $10,000 or more from one or more
persons by false or fraudulent pretense,
representation, or promise and obtains
property or services in accordance with the
scheme.
The state argues that in the absence of an explicitly
designated culpable mental state, AS 11.81.610(b) controls the
statute's interpretation. According to AS 11.81.610(b), when "a
provision of law defining an offense does not prescribe a culpable
mental state, the culpable mental state [for] . . . conduct is
'knowingly[.]'" The state concludes that this provision required
proof that the Knixes "knowingly" engaged in a scheme to defraud.
The state's argument is sound as far as it goes, but it
does not go far enough, for it ignores the ordinary and
unmistakable meaning of the words "scheme to defraud." The
ordinary definitions of both words strongly imply an element of
intentionality. In relevant part, Webster's defines "scheme" as "a
plan or program of something to be done: a planned undertaking
. . . as . . . a crafty or unethical project[.]" And Webster's
defines "defraud" to mean "to take or withhold from (one) some
possession, right, or interest by calculated misstatement or
perversion of truth, trickery, or other deception." (EN9)
Alaska's scheme to defraud statute provides no indication
that the words "scheme" and "defraud" are used in anything other
than their ordinary meaning. Neither word is defined in Alaska's
criminal code. As defined by the dictionary, the individual words
describe conduct directed toward a specific objective. These words
are coupled in AS 11.46.600(a) by the purposive word "to," yielding
the statutory phrase, "scheme to defraud," which unmistakably
refers to purposive conduct -- a scheme -- that is intended to
achieve a specific result -- a fraud. The notion of intentional
conduct is thus intrinsic in the ordinary meaning of the term
"scheme to defraud."
The legislative commentary to the scheme to defraud
statute corroborates this analysis. The commentary makes it clear
that Alaska's scheme to defraud provision was based in part on the
federal mail fraud statute:
Subsections (a)[(1)] and [(2)] of the
statute are based on 18 U.S.C.  1341 (1970)
and the revised versions of that provision
appearing in the proposed Federal Criminal
Code  1437 95th Cong., 1st Sess.  1734
(1977). The federal provision is commonly
referred to as the mail fraud statute.
A substantial body of case law has
developed around the mail fraud statute making
it an effective tool in the area of consumer
frauds. Because the language of the proposed
statute in part parallels that of the mail
fraud statute, it is expected that the
judicial decisions under the federal provision
will be highly relevant to the construction of
the Code provision.
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supplement 47 (1978).
Case law interpreting the federal statute uniformly
supports our conclusion that the phrase "scheme to defraud"
describes purposeful conduct. Like Alaska's scheme to defraud
provision, the federal mail fraud statute proscribes participation
in a scheme to defraud and does not specify the applicable culpable
mental state:
Whoever, having devised or intending to
devise any scheme or artifice to defraud, or
for obtaining money or property by means of
false or fraudulent pretenses, representa-
tions, or promises . . . [uses the mail
commits a felony].
18 U.S.C.  1341. Federal courts construing the mail fraud
statute's reference to "scheme . . . to defraud" unanimously agree
that the phrase necessarily implies specific intent. (EN10)
In short, we think the state mistaken in arguing that
Alaska's scheme to defraud statute does not require proof of
specific intent. We construe the statutory phrase "scheme to
defraud" as meaning a scheme intended to defraud. (EN11)
Our conclusion, however, does not necessarily mean that
the trial court committed plain error -- or, for that matter, any
error at all -- in failing to instruct the jury, sua sponte, on the
need to find specific intent. Here, the trial court gave the jury
the Alaska Pattern Jury Instruction for the offense of scheme to
defraud, which required the state to prove beyond a reasonable
doubt that the defendant "knowingly engaged in conduct constituting
a scheme." The culpable mental state instruction challenged by the
Knixes thus faithfully reflects the wording of the pattern
instruction. (EN12)
The Knixes cannot plausibly claim that this instruction
was erroneous in requiring proof of knowing participation in a
scheme to defraud. If the instruction was erroneous at all, its
error was one of omission: its failure to require proof of specific
intent to defraud in addition to proof of knowing participation in
a scheme. This point is well illustrated by the federal pattern
jury instruction for the mail fraud statute, an instruction cited
and relied on by the Knixes themselves. In relevant part, it
requires the jury to find both knowing participation and specific
intent to defraud:
(1) the defendant[s] . . . knowingly
participated in a scheme . . . to defraud [or]
. . . knowingly participated in a scheme to
obtain money or property by means of false or
fraudulent pretenses, representations, or
promises . . .
(2) the defendant[s] did so with the
intent to defraud[.]
Devitt, Blackmar & O'Malley, Federal Practice and Instructions, 
40.03 (1990).
As we have previously pointed out, the Knixes can
belatedly complain of the instruction given below only if its
omission of specific intent language amounted to plain error: that
is, if the omission was obviously erroneous and substantially
prejudiced the Knixes' trial. We find no obvious error or
substantial prejudice. We reach this conclusion for precisely the
reason that prompted us to hold that the crime of scheme to defraud
requires proof of specific intent: the element of specific intent
is implicit in the plain meaning of the words "scheme to defraud."
Under AS 11.81.900(a)(1), "a person acts 'intentionally'
with respect to a result described by a provision of law defining
an offense when the person's conscious objective is to cause that
result[.]" It seems all but inconceivable that a knowing
participant in a scheme to defraud -- that is, by dictionary
definition, "a planned undertaking" or "crafty or unethical
project" to "take or withhold [property of another] by calculated
misstatement or perversion of truth" -- could avoid acting
intentionally.
Just as the phrase "scheme to defraud" unmistakably
refers to conduct directed at achieving a conscious objective --
obtaining property of another by fraud -- so the trial court's
instruction requiring the jury to find that the Knixes knowingly
engaged in a scheme to defraud unmistakably communicated the need
to find that the Knixes acted with specific intent to defraud --
that they engaged in their scheme with the "conscious objective
. . . to cause that result[.]" AS 11.81.900(a)(1). And just as it
is all but inconceivable that the Knixes could have knowingly
engaged in a scheme to defraud without acting intentionally, so it
is all but inconceivable that a reasonable juror could find them
guilty of knowing participation in the scheme without necessarily
concluding that they acted with specific intent to defraud.
The Knixes complain that the omission of specific intent
language from their scheme to defraud instruction might have
prejudiced them by allowing the jury to convict them for
participating in a "scheme that defraud[ed]" rather than in a
"scheme to defraud." (Emphasis by the Knixes.) The simple and
sufficient answer to this complaint is that the court never told
the jury to convict the Knixes upon proof of a scheme "that"
defrauded; rather, the court explicitly instructed the jury to
convict only if convinced beyond a reasonable doubt that they
engaged in a scheme "to" defraud.
As a matter of common sense, we think that this
distinction is one that reasonable jurors would understand and
correctly apply. The jury instructions as a whole said nothing to
suggest that knowing participation in a scheme to defraud did not
require a finding of intent to defraud. Moreover, at no point in
its final argument to the jury did the state attempt to
characterize scheme to defraud as a general intent, rather than a
specific intent, crime. Indeed, the prosecution expressly
characterized the Knixes' acts as intentional.
The controversy at trial centered on the existence of a
scheme. The prosecution argued that the Knixes intentionally
schemed to defraud the state of welfare benefits; the Knixes
responded that there was no scheme at all -- that they had acted
innocently and that if the state overpaid their welfare benefits,
this was due to miscommunication and good-faith error. In
convicting the Knixes of engaging in a scheme to defraud, the jury
obviously decided this dispute in favor of the state. Moreover, in
simultaneously convicting the Knixes of the additional crime of
theft by deception, the jury necessarily found that the Knixes had
acted intentionally, since the jury instruction on theft by
deception expressly required proof of specific intent to defraud.
We ordinarily presume that a jury follows the trial
court's instructions. The record in this case provides no reason
to suppose that the Knixes' jury strayed from its duty to heed the
scheme to defraud instruction as actually given or that the jury
interpreted the instruction in other than a common sense manner.
In summary, even though the disputed scheme to defraud
instruction failed to expressly incorporate a specific intent
requirement, the instruction did not preclude the jury from basing
its verdict on proof of specific intent to defraud; to the
contrary, the instruction implicitly required such proof. Absent
an objection and a request for specific intent language, the
instruction was legally sufficient as given; (EN13) and under the
circumstances of this case, it resulted in no discernible
prejudice. We find no plain error.
The Knixes' final claim is that their convictions for
theft by deception (second-degree theft) should have merged with
their scheme to defraud convictions. The state concedes error. We
are empowered to accept this concession if it is supported by law
and factually grounded. Marks v. State, 496 P.2d 66, 67-68 (Alaska
1972). We find that it is.
Under the charges and theory pursued by the state at
trial, the fraudulent scheme for which the Knixes were convicted
consisted of the individual acts of theft for which they were
simultaneously convicted. Under the circumstances of this case,
the thefts and the scheme to defraud involved no appreciable
differences in intent or conduct; and in the specific factual
context of this case, there was no significant variance in the
basic societal interests served by the theft and scheme to defraud
statutes. Double jeopardy thus precludes multiple punishment for
these offenses. Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
Accordingly, the convictions for perjury and scheme to
defraud are AFFIRMED; on remand, the superior court is DIRECTED to
issue amended judgments vacating the convictions for second-degree
theft.
ENDNOTES:
1. Clint Knix was individually charged with and convicted of an
additional count of perjury as a result of a false sworn statement
he made on October 16, 1992. The circumstances surrounding this
offense are not at issue here, and Knix does not dispute the
sufficiency of the evidence to support his conviction on the
separate perjury count.
2. The second form of "sworn statement," defined in AS
11.56.240(2)(B), permits a perjury charge to be established without
proof of an oath or affirmation when a statement is made "under
penalty of perjury" by a person who certifies, in accordance with
AS 09.63.020(a), that "a notary public or other official empowered
to administer oaths is unavailable[.]" Since we conclude that
sufficient evidence existed to prove that the Knixes' statement was
given under oath or affirmation, and so qualified as a "sworn
statement" under AS 11.56.240(2)(A), we need not decide whether it
also qualified as a sworn statement under AS 11.56.240(2)(B).
3. AS 09.63.030(a) provides:
(a) When a document is required by law
to be notarized, the person who executes the
document shall sign and swear to or affirm it
before an officer authorized by law to take
the person's oath or affirmation and the
officer shall certify on the document that it
was signed and sworn to or affirmed before the
officer.
Subsection (b) of the same statute prescribes a generic form of
certification that "may be" used by any officer who notarizes a
document; subsection (c), which deals specifically with notaries
(as opposed to other types of authorized officers), spells out the
manner in which a notary must sign the document and affix the
notary seal.
4. The Knixes also claim that Gargan is not binding because our
opinion alternatively concluded that Gargan's conviction could be
sustained even if the disputed statement in that case did not
qualify as a "sworn statement." See Gargan, 805 P.2d at 1005 n.2.
Although technically correct in characterizing our conclusion on
the issue of the sworn statement in Gargan as dictum rather than
holding, the Knixes set forth no persuasive argument suggesting
that Gargan was incorrectly reasoned and no cogent justification
for disregarding that decision. Under the circumstances, the
distinction between holding and dictum becomes inconsequential.
5. See also United States v. Thai, 29 F.3d 785, 812 (2nd Cir.
1994) ("An affirmation is simply a solemn undertaking to tell the
truth; no special verbal formula is required."); State v. Zamorsky,
387 A.2d 1227, 1232 (N.J. App. 1978) ("The remaining step was to
obtain from [the witness] . . . a solemn commitment that she would
speak the truth. This is the substance of an oath, or of an
affirmation or declaration, all of which are forms of attestation
by which a witness signifies that [he or she] is bound in
conscience to perform an act faithfully and truthfully[.]").
6. The Knixes argue that LaVigne requires a knowing and voluntary
on-record waiver of the right to testify. The state reads LaVigne
as requiring something less: an on-record inquiry to ensure that
the defendant understands that the right to testify is personal to
the defendant and cannot be usurped by the defendant's counsel.
LaVigne itself is ambiguous on this score. Although the LaVigne
court appears to have been primarily concerned with the personal
nature of the right to testify and the danger of that right being
waived by counsel, the closing paragraph of the decision advises:
To avoid future cases such as LaVigne's,
we believe that trial judges should take steps
to insure that a criminal defendant's failure
to take the stand in his or her own defense
was the result of a knowing and voluntary
decision made by the defendant. To accomplish
this, we believe judges should make an on-the-
record inquiry after the close of the
defendant's case, although out of the jury's
hearing, into whether a nontestifying
defendant understands and voluntarily waives
his right. Such action insures a valid waiver
of the defendant's right.
LaVigne, 812 P.2d at 222. This passage ostensibly indicates that
the supreme court meant to require that the record in all cases
reflect a personal, knowing, and voluntary waiver of the right to
testify by the defendant. However, if read to require a knowing
and voluntary on-record waiver of the right to testify, LaVigne
becomes conceptually troublesome. Most constitutionally guaranteed
procedural rights stand alone, without any constitutionally
guaranteed equal-but-opposite corollary. For example, a criminal
defendant enjoys the right to be tried by a jury but has no
opposing constitutional right to be tried before a judge alone,
without a jury. In the absence of a clear waiver of the right to
a trial by jury, the right may be preserved by ordering the
defendant to stand trial before a jury; the order will encroach on
no other basic procedural rights.
A notable exception is the constitutionally protected right to
counsel, whose corollary is the constitutionally protected right to
self-representation. See Faretta v. California, 422 U.S. 806
(1975). Within this corollary pair, however, the right to counsel
is clearly dominant, and right to self-representation is clearly
subordinate. A criminal defendant who does not affirmatively and
expressly waive the right to counsel must proceed with legal
representation. But while forfeiture of the right to counsel is
not tolerated, forfeiture of the right of self-representation is
the established norm: the right is commonly ignored unless a
defendant affirmatively asserts it, and even then, the trial court
must attempt to discourage the defendant from proceeding without
counsel and must ensure that the defendant is minimally qualified
to pursue a course of self-representation.
The right to testify and its corollary, the right to silence,
stand on unique footing. Both are fundamental and constitutionally
enshrined. Neither has been established as clearly dominant over
the other; they are equally vital. Yet one right is essentially
active, while the other is passive: exercise of the right to
testify requires the defendant's active participation; the right to
silence can be asserted by complete inaction. And the two rights
are mutually exclusive. A defendant cannot simultaneously exercise
the right to testify and to remain silent. The exercise of one
right necessarily entails a relinquishment of the other.
Given the unique nature and relationship of these corollary
rights, a rule actually requiring an on-record, voluntary waiver of
the right to testify leads to a profound conundrum: what is to be
done in the case of a defendant who is unwilling to knowingly and
voluntarily relinquish either the right to testify or the right to
remain silent? There is seemingly no default option. If a
defendant stands mute in the face of a LaVigne inquiry or expresses
continuing confusion over the court's explanation of procedural
rights, a finding of voluntary waiver of the right to testify might
strain law and logic. Yet the trial court cannot direct the
defendant to testify; nor would it be a palatable alternative to
abort the trial -- a measure that would put the power of mistrial
in the hands of virtually any enterprising defendant. More
difficult still would be a defendant who actively professed a
desire to testify yet steadfastly refused to waive the right to
silence, offering convincing evidence of third-party threats or
other coercive forces. A finding of voluntary waiver of the right
to testify would be difficult to justify in these circumstances,
but would the existence of coercive forces over which the court has
no control actually require that the prosecution be abandoned?
In the present case, we assume that LaVigne does require a
knowing and voluntary waiver, and we conclude that the record
establishes that the Knixes did knowingly and voluntarily
relinquish their right to testify. We thus avoid the hypothetical
problems illustrated above. These hypotheticals, however, counsel
against a hasty conclusion that LaVigne should be construed to hold
that knowing and voluntary on-record waiver of the right to testify
will always be required when a criminal defendant declines to
testify.
7. The Knixes suggest on appeal that Judge Murphy might have
conducted in camera proceedings in the absence of their attorneys
or ordered independent counsel appointed for the limited purpose of
consulting with them concerning the exercise of their right to
testify. These measures were neither suggested nor requested
below. Conducting in camera proceedings in the absence of counsel
or appointing special consultative counsel would inevitably have
intruded upon the existing relationship between the Knixes and
their trial counsel. Measures of this kind could be justified, if
at all, only upon a substantial showing of necessity. Nothing in
the record indicates the existence at trial of a potential conflict
between the Knixes and their attorneys warranting interference with
the Knixes' established attorney-client relationships. And nothing
suggests that either of the Knixes would have been more forthcoming
in camera than they were in the courtroom.
8. Moreover, even assuming the Knixes had established a LaVigne
violation, the error would be harmless beyond a reasonable doubt.
To make a threshold showing of prejudice stemming from denial of
the right to testify, the Knixes were required to show that they
would have offered relevant testimony if allowed to testify at
trial. LaVigne, 812 P.2d at 221. To date, the Knixes have made no
showing that any testimony they proposed to give might have been
relevant; indeed, they have never unequivocally asserted that they
actually would have testified had the trial court undertaken
further efforts to elicit a voluntary waiver.
9. Webster's Third New International Dictionary (unabridged ed.
1966).
10. See, e.g., United States v. McNeive, 536 F.2d 1245, 1247 (8th
Cir. 1976) ("Since the term 'scheme to defraud' connotes some
degree of planning by the perpetrator, it is essential that the
evidence show the defendant entertained an intent to defraud.");
United States v. Nance, 502 F.2d 615, 618 (8th Cir. 1974)
("'Scheme' to defraud within the purview of this section involves
some connotation of planning and pattern. Thus, intent to defraud
is an essential element."); see also United States v. Kreimer, 609
F.2d. 126 (5th Cir. 1980); United States v. Van Dyke, 605 F.2d 220
(6th Cir. 1979); United States v. Beecroft, 608 F.2d 753 (9th Cir.
1979); United States v. Williams, 545 F.2d 47 n.2 (8th Cir. 1976)
("The government must show beyond a reasonable doubt that the
defendant acted with an intent to defraud under  1341."); United
States v. Jones, 425 F.2d 1048 (9th Cir. 1970); United States v.
Koenig, 388 F. Supp. 670 (S.D.N.Y. 1974).
11. We note that the legislature has defined "intent to defraud"
in AS 11.46.990(10) as meaning:
(A) an intent to injure someone's
interest which has value or an intent to use
deception; or
(B) knowledge that the defendant is facilitating a fraud or
injury to be perpetrated or inflicted by someone else.
12. Alaska Pattern Jury Instruction (Criminal) 46.600 reads, in
relevant part:
In order to establish the crime of scheme
to defraud, it is necessary for the state to
prove beyond a reasonable doubt the following:
First, that the event in question
occurred at or near (place) and on or about
(date) ;
Second, that (defendant) knowingly
engaged in conduct constituting a scheme;
Third, that the scheme was to [defraud
five or more persons] [obtain property or
services from five or more persons by false or
fraudulent pretenses, representation, or
promise] [to defraud one or more persons of
$10,000] [obtain $10,000 or more from one or
more persons by false or fraudulent pretense,
representation, or promise]; and
Fourth, that defendant obtained property
or services in accordance with the scheme.
13. See Adams v. State, 718 P.2d 164, 166 (Alaska App. 1986)
(finding no plain error despite erroneous instruction -- given
strength of the evidence as well as the nature of the theory of
defense, no obvious prejudice resulted); cf. Hilbish v. State, 891
P.2d at 850; Bidwell v. State, 656 P.2d 592, 595 (Alaska App.
1983).
