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State v Bonham (06/22/2001) ap-1749

State v Bonham (06/22/2001) ap-1749

                              NOTICE
     The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter.  Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:  

              303 K Street, Anchorage, Alaska  99501
                       Fax:  (907) 264-0878
        E-mail:  corrections@appellate.courts.state.ak.us

          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,              )
                              )    Court of Appeals No. A-7614
                   Appellant, )     Trial Court No. 3AN-S99-1430 CR
                              )
                  v.          )            O P I N I O N
                              )
RAEJEAN S. BONHAM,            )                
                              )
                    Appellee. )      [No. 1749   June 22, 2001]
                              )


          Appeal from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.

          Appearances:  Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant.  Sue Ellen Tatter, Anchorage, for Appellee.   

          Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.

          STEWART,  Judge.

          Raejean S. Bonham pleaded guilty to federal charges of
mail fraud and money laundering.  Later, a state grand jury
indicted Bonham on one count of perjury and six counts of
submitting misleading securities filings. [Fn. 1]  Bonham moved to
dismiss this indictment, claiming that AS 12.20.010 barred the
State from prosecuting her for these crimes.  Under AS 12.20.010,
the State may not prosecute a defendant for a criminal act if the
defendant previously was convicted or acquitted in another
jurisdiction for the same act.  Bonham asserted that her federal
mail fraud conviction encompassed her acts of perjury and
submitting misleading securities filings.  
          The superior court agreed with Bonham and dismissed the
state indictment.  The State now appeals the superior court's
decision.  We conclude that Bonham's perjury and misleading
securities filings are not the same act as the mail fraud for which
she was convicted in federal court   and, thus, AS 12.20.010 does
not bar the State from pursuing its indictment.  Accordingly, we
reverse the decision of the superior court and reinstate Bonham's
indictment. 
          Underlying facts and proceedings
          In 1984, Bonham began buying airplane tickets from
brokers who specialized in buying frequent flier coupons from
airline customers.  Bonham and her business, World Plus, Inc.,
would resell the tickets to her customers for less than the cost of
a ticket purchased directly from an airline. 
          Beginning in 1989, Bonham started selling "contracts" to
raise money for her business.  She told her potential investors
that she would use this money to buy frequent flier coupons in bulk
from large corporations.  Bonham told her investors that she was
selling these "contracts" because she could not obtain the needed
financing from banks, and thus she needed to raise money from
private sources.  
          Bonham sold these "contracts" in $5,000 increments.  The
"contracts" were payable in six to eight months.  They carried a
return of twenty to fifty percent of the principal investment. 
When a "contract" matured, Bonham encouraged the investor to roll
it over for another term.  When Bonham's scheme was in full swing,
several hundred individuals held these "contracts" at any one time. 

          Bonham did not, in fact, purchase frequent flier coupons
from large corporations.  Instead, she purchased the tickets from
brokers using funds provided directly by flying customers. 
Bonham's profits from reselling these tickets were marginal;
sometimes, her transactions actually resulted in losses.  
          Moreover, Bonham did not use the funds from her
"contracts" to buy frequent flier tickets.  Instead, she used this
money to pay the maturing "contracts" of other investors.  That is,
Bonham engaged in a "Ponzi", or pyramid, scheme.  
          After a potential investor in Bonham's "contracts"
contacted the State Division of Securities, Ed Watkins, a
securities examiner, contacted Bonham.  On September 4, 1992,
Watkins advised Bonham that her "contracts" were securities for
purposes of Alaska's securities statutes (AS 45.55), and that she
either had to register each offering or apply for an exemption
under AS 45.55.900.  Bonham indicated that she had not realized
that her contracts were covered by Alaska's securities law.  She
promised that she would not issue any new contracts or rollover any
current contracts until the matter was resolved. 
          This promise was false.  Despite her assurance to
Watkins, Bonham continued to issue new contracts through World Plus
and through another business entity she owned, the Atlantic Pacific
Funding Corporation. 
          An attorney representing Bonham corresponded with Watkins
between November 1992 and February 1993.  This correspondence led
to Bonham's March 1993 application to the Division of Securities to
offer exempt securities.  In a letter accompanying Bonham's
application, her attorney stated that "all of [Bonham's] prior
sales [had been] resolved and all investors paid in full."  The
attorney said that Bonham wanted to begin selling "new contracts"
on March 15, 1993, and that these new contracts would total
approximately $300,000.  Bonham's application set an upper limit of
twenty-five investors and $500,000 in contracts.  Based on these
representations, the Division of Securities issued Bonham the
requested exemption.  
          By the end of March 1993, Bonham had violated the terms
of her exemption.  Her outstanding contracts totaled more than
$2,000,000. 
          A little more than one year later, on May 24, 1994,
Bonham's attorney wrote the Division of Securities to apply for a
renewal of Bonham's exemption.  The attorney's letter was
accompanied by an affidavit from Bonham.  In her affidavit, Bonham
swore that all her previously issued contracts had been paid in
full.  This assertion was false.  Since March 1993, Bonham had
issued more than 2,000 contracts with a principal amount in excess
of $45,700,000.  
          Based on Bonham's false representations, the Division of
Securities granted Bonham another exemption, but this time the
Division set upper limits of fifteen investors and no more than
$250,000 in contracts.  The Division also required Bonham to submit
quarterly reports on her contract-selling activities.  
          In Bonham's first quarterly report (September 8, 1994),
Bonham's attorney reported that Bonham had issued no new contracts. 
In fact, Bonham had issued more than 500 contracts during that
three-month period, in a principal amount exceeding  $11,700,000. 
Bonham's next quarterly report (December 12, 1994) stated that she
had only one new investor.  In fact, Bonham had issued more than
600 new contracts in a principal amount exceeding $14,250,000.  
          The Division of Securities granted Bonham a renewed
exemption for 1995.  Bonham's attorney submitted three quarterly
reports in 1995, each one claiming that Bonham had engaged only in
authorized activity.  In truth, Bonham continued to issue hundreds
of contracts, with principal sums in the tens of millions of
dollars.   
          In October 1997, a federal grand jury returned a 79-count
indictment against Bonham.  The indictment included numerous counts
of mail fraud, [Fn. 2] money laundering, [Fn. 3] and engaging in
prohibited monetary transactions. [Fn. 4]  Bonham ultimately
reached a plea agreement with the federal government that called
for her to plead guilty to one count of mail fraud and one count of
money laundering.  On January 14, 1999, United States District
Court Judge H. Russell Holland sentenced Bonham to concurrent
sentences of 5 years in prison on each count. 
          One month later, on February 16, 1999, an Alaska grand
jury indicted Bonham on one count of perjury and six counts of
submitting misleading securities filings.  The perjury count was
based on Bonham's affidavit (dated May 24, 1994) that her attorney
sent to the Division of Securities.  The six counts of submitting
misleading securities filings were based on Bonham's May 24, 1994,
application to offer exempt securities, and the ensuing five
quarterly reports that her attorney sent to the Division of
Securities in 1994 and 1995.
          Bonham moved to dismiss the State's indictment, arguing
that AS 12.20.010 barred the State from prosecuting her for any of
the acts connected with her mail fraud scheme.  Superior Court
Judge Michael L. Wolverton found that Bonham's false affidavit and
her misleading securities filings were all connected to the mail
fraud for which she had been convicted in federal court.  Judge
Wolverton therefore granted Bonham's motion to dismiss.  The State
now appeals. 
               Why we conclude that AS 12.20.010 does not bar
the State from pursuing its indictment

          The statute that Bonham relies on, AS 12.20.010, declares
that if a defendant has been convicted or acquitted in another
jurisdiction for a criminal act, Alaska is barred from prosecuting
the defendant for the same act: 
                         When an act charged as a crime is within
the jurisdiction of the United States, another state, or a
territory, as well as of this state, a conviction or acquittal in
the former is a bar to the prosecution for it in this state.
          
Bonham claims that her federal conviction for mail fraud rests on,
or incorporates, all the acts she committed in connection with her
scheme to defraud   including the false affidavit and the
misleading documents she filed with the Division of Securities in
her effort to prevent the Division from discovering or interfering
with her scheme.  Thus, Bonham argues, AS 12.20.010 prohibits the
State from prosecuting her for these crimes.           We discussed
AS 12.20.010 in Booth v. State. [Fn. 5]  We noted that Alaska is
one of a substantial minority of states that limit the power of
their own government to prosecute a defendant for a criminal act
after another sovereign already has done so. [Fn. 6]  We explained
that AS 12.20.010 was "designed to complement the double jeopardy
clause by protecting criminal defendants against successive
prosecutions by different governments." [Fn. 7]      
          To determine whether this statute bars the State from
prosecuting Bonham, we must interpret the phrase, "an act charged
as a crime."  Our job is to discern what the legislature meant by
these words. [Fn. 8]  Bonham's case demonstrates that this short
and apparently simple phrase does not always point to clear
answers.  As a New York court remarked (when construing that
state's corresponding statutes [Fn. 9]), any effort to discern the
legislature's intent necessarily involves   
                    a careful effort to reconcile the complex and
competing considerations inherent in this area of law.  On the one
hand, there is the powerful traditional rationale underlying double
jeopardy   the vital need to protect the accused from repeated
prosecutions for the same alleged acts.  On the other hand, there
is a natural reluctance to surrender the right of this jurisdiction
to enforce its laws to the claims of other jurisdictions
functioning under different statutes, and with different problems
and interests.  Complicating the whole is the infinite variety of
language relating to similar criminal acts which may be found in
the statutory provisions of different jurisdictions and the
infinite permutations of factual situations which can and do
occur.[ [Fn. 10]]
          
          Because numerous states have statutes corresponding to AS
12.20.010, there is considerable case law addressing the question
of whether a state may prosecute a defendant for a crime after the
defendant already has been convicted or acquitted in federal court
on related charges. [Fn. 11]  One situation frequently discussed in
these cases is the type of situation presented in Bonham's case: 
a defendant has been prosecuted for a federal offense involving a
wide-ranging criminal scheme   for example, wire fraud,  mail
fraud, or a RICO violation   and then a state indicts the defendant
for one or more crimes that logically could be viewed as components
of the scheme for which the defendant was convicted or acquitted in
federal court.  Courts generally hold that the state prosecution is
allowed. [Fn. 12] 

          These courts generally conclude that the word "act" was
intended to mean something narrower than "transaction" or
"episode," and for this reason they focus on a comparison of the
particular elements that must be proved to establish the federal
crime versus the elements that must be proved to establish the
state crime.  For instance, in the Fello case quoted above, the
defendants were acquitted in federal court of charges that they
engaged in restraint of interstate commerce and conspired to
restrain interstate commerce. [Fn. 13]  New York then prosecuted
the defendants for extortion and conspiracy to commit extortion. 
The court ruled that the state prosecution was not barred by the
prior federal acquittal because "[that] acquittal could not
conceivably be viewed as an adjudication on the merits of the
matters set forth in the [state] indictment." [Fn. 14]
          We reach the same conclusion in Bonham's case.  Bonham
pleaded guilty to violating 18 U.S.C. sec. 1341, a federal statute
that forbids using the mail (or interstate delivery services such
as Federal Express) to further "any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises."  Bonham's written plea
agreement contained a detailed (fourteen-paragraph) recitation of
the factual basis for Bonham's mail fraud conviction.  This
recitation of the government's case focuses exclusively on the
false and deceptive representations that Bonham made to her
investors.  It does not mention the false affidavit and misleading
filings that Bonham submitted to the Alaska Division of Securities. 
Moreover, the plea agreement identifies Bonham's predicate use of
the mail as her act of inducing a woman in New Hampshire to send
her a $50,000 check via Federal Express on May 9, 1995.  
          Given the elements of the federal offense of mail fraud,
and given this recitation of the factual basis for Bonham's plea,
Bonham's conviction of mail fraud in federal court clearly rested
on different acts from those charged in the Alaska indictment.  It
is true that the acts alleged in the state indictment (perjury and
the submission of misleading filings) were connected to Bonham's
scheme to defraud the World Plus investors.  If Bonham committed
these criminal acts, she clearly did so in order to forestall the
Division of Securities from investigating and potentially derailing
her scheme to defraud her investors.  But AS 12.20.010 does not
forbid successive prosecutions for offenses arising from the same
transaction or episode.  Rather, it forbids successive prosecutions
for offenses based on the same criminal act. [Fn. 15] 
          Bonham's federal plea to mail fraud   her acknowledgement
of the fraudulent acts recited in the federal plea agreement   does
not encompass the allegations of perjury and misleading securities
filings contained in the state indictment.  Thus, Bonham's federal
mail fraud conviction realistically cannot be viewed as an
adjudication of those alleged state offenses.  If Bonham submitted
a false affidavit and  misleading filings to the Division of
Securities, and even if she did these things to advance her scheme
to defraud the World Plus investors, Bonham's federal mail fraud
conviction does not bar her prosecution for these crimes any more
than it would bar a hypothetical prosecution for murder if, for
example, the State alleged that Bonham had committed homicide in
order to silence someone who was about to reveal her scheme. 
          Why we conclude that the Alaska double
jeopardy clause does not bar the State from pursuing its indictment

          Bonham alternatively argues that the State should be
prevented from pursuing its indictment because Federal District
Judge Holland considered, or at least knew of, Bonham's perjury and
misleading securities filings when he sentenced Bonham for mail
fraud.  Bonham points out that her federal pre-sentence report
discusses the deceptive filings she submitted to the Alaska
Division of Securities.  She argues that, because Judge Holland
knew of these acts when he sentenced Bonham, the Alaska
Constitution's  double jeopardy clause should bar the State from
pursuing its indictment.  
          In Witte v. United States, [Fn. 16] the United States
Supreme Court held that the federal double jeopardy clause is not
violated when a defendant is convicted and sentenced for a crime
even though another judge already has considered the facts of that
crime when calculating the defendant's sentence for a separate
crime under the federal sentencing guidelines. [Fn. 17] Thus,
Bonham has no claim under the federal double jeopardy clause. 
Bonham argues that the Alaska double jeopardy clause should be
interpreted to provide greater protection.  But Bonham has not
identified anything in the text, the context, or the history of our
double jeopardy clause (article 1, section 9) to support such an
expansion of double jeopardy protection.  
          In Yearty v. State, [Fn. 18] we held that separate
convictions and sentences for offenses arising out of a single
transaction do not violate the double jeopardy clause "when the
offenses involve differences in intent or conduct, or when the
statutory provisions that have been violated protect societal
interests that are significantly different." [Fn. 19]  Bonham's
offense of mail fraud involves significantly different societal
interests from her alleged offenses of perjury and submitting
misleading securities filings, and the federal government could not
have prosecuted Bonham for those latter crimes.  We therefore
conclude that even if Judge Holland did consider Bonham's alleged
perjury and misleading securities filings when he sentenced Bonham
for federal mail fraud, the Alaska double jeopardy clause would not
bar the State from prosecuting Bonham for these acts.  
                    Conclusion
          For these reasons, we hold that the state indictment
against Bonham is not barred by AS 12.20.010, nor is it barred by
the Alaska double jeopardy clause.  The superior court's order
dismissing this indictment is REVERSED, and this case is REMANDED
to the superior court for further proceedings on the indictment.  



                            FOOTNOTES


Footnote 1:

     AS 11.56.200(a) and AS 45.55.925(a), respectively. 


Footnote 2:

     18 U.S.C. sec. 1341. 


Footnote 3:

     18 U.S.C. sec. 1956(A)(1)(a)(i). 


Footnote 4:

     18 U.S.C. sec. 1957. 


Footnote 5:

     903 P.2d 1079 (Alaska App. 1995). 


Footnote 6:

     See id. at 1085.   See W. LaFave & J. Israel, Criminal
Procedure, sec. 25.5(b)-(c), at 691-94 (2d. ed. 1999).  Many of
these
state statutes are catalogued in the American Law Institute's Model
Penal Code and Commentaries, sec. 1.10, Cmt. at 174-75, nn. 15, 17,
18, & 21 (1985). 


Footnote 7:

     Booth, 930 P.2d at 1085. 


Footnote 8:

     See Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992)
(noting that a court's duty when construing a statute "is to
ascertain and implement the intent of the legislature"). 


Footnote 9:

     See N.Y. Penal Law sec. 33 and N.Y. Crim. Proc. sec. 139.


Footnote 10:

     People v. Fello, 231 N.Y.S.2d 657, 661 (Ct. Gen. Sess. 1962). 



Footnote 11:

     See generally Annotation, Conviction or Acquittal in Federal
Court as Bar to Prosecution in State Court for State Offense Based
on Same Facts   Modern View, 6 A.L.R. 4th 802, 816-24 (1981), as
supplemented by the August 2000 pocket part.  


Footnote 12:

     See State v. Berry, 650 P.2d 1246, 1248, 1251-52 (Ariz. App.
1982) (The defendant pleaded guilty to federal conspiracy charges
in connection with a scheme to defraud.  Held:  the Arizona
counterpart to AS 12.20.010 did not bar the state from prosecuting
the defendant for theft by false pretenses arising from the same
scheme.); People v. Porter, 620 N.E.2d 381, 384 (Ill. 1993) (The
defendant was indicted on federal RICO (racketeering) charges and
the federal court dismissed the charges.  Held:  this dismissal did
not bar Illinois from prosecuting the defendant for a related
murder, even though this murder was one of the predicate felonies
listed in the federal RICO indictment, because a federal conviction
could have been based on the other listed predicate felonies.);
State v. Cooper, 510 A.2d 681, 689-90 (N.J. App. 1986) (The
defendant was convicted of federal RICO charges that listed robbery
as one of the predicate felonies.  Held:  New Jersey could
prosecute the defendant for robbery because the federal conviction
was based on other listed predicate felonies.);  State v. Di
Ventura, 453 A.2d 1354, 1356, 1357-58 (N.J. App. 1982), disapproved
on other grounds in State v. Dively, 458 A.2d 502 (N.J. 1983) (The
defendant was acquitted in federal court of a mail fraud charge
based on the defendant's alleged scheme to defraud insurance
companies by committing arson and then submitting fraudulent
claims.  Held:  New Jersey could prosecute the defendant for the
underlying crimes of arson and conspiracy to commit arson.); People
v. Mabry, 479 N.Y.S.2d 85, 86-87 (N.Y. App. 1984) (The defendant
was convicted of federal mail fraud.  Held:  this mail fraud
conviction did not bar New York from prosecuting the defendant for
forgery and possession of forged instruments based on the same
underlying events.); People v. Gilbert, 253 N.Y.S.2d 656, 661-62
(Spec. and Trial Term 1964) (The defendant was convicted of federal
wire fraud.  Held: New York was not barred from prosecuting the
defendant for the underlying grand larceny.); State v. Rudy, 719
P.2d 550, 551, 553-54 (Wash. 1986) (The defendant pleaded guilty in
federal court to a charge of conspiring to interfere with
interstate commerce by means of robbery, extortion, or threat of
violence.  Held:  the defendant's federal conviction did not bar
Washington from prosecuting the defendant for burglary and
kidnapping even though substantially the same evidence probably
would be used in the state prosecution).  

     See also People v. Lo Cicero, 200 N.E.2d 622, 624-25 (N.Y.
1964) (The defendant was acquitted in federal court of robbery
charges arising from the hijacking of a truck.  Held:  the state
prosecution for kidnapping of the truck driver was not barred by
New York's counterpart to AS 12.20.010.); Epps v. Commonwealth, 216
S.E.2d 64, 68-69 (Va. 1975) (The defendant was acquitted of federal
bank robbery charges.  Held:  Virginia could prosecute the
defendant for attempted murder arising from the same transaction.);
Naughton v. State, 453 A.2d 796, 797-98 (Del. 1982) (The defendants
were convicted in federal court for transmitting obscene
photographs via the mail.  Held:  this federal conviction did not
bar Delaware from prosecuting the defendants for sexual
exploitation of minors based on production of the same
photographs.).

     But cf. Commonwealth v. Mascaro, 394 A.2d 998, 1001-02 (Penn.
Super. 1978)  (holding that a defendant's prior federal conviction
for mail fraud and false statements barred Pennsylvania from
pursuing a prosecution for theft by deception, deceptive business
practices and unsworn falsification); State v. West, 260 N.W.2d
215, 220-23 (S.D. 1977) (holding that a defendant's prior federal
conviction for wire fraud barred South Dakota from pursuing a
prosecution for grand larceny, obtaining money by false pretenses,
and issuing checks against insufficient funds). 


Footnote 13:

     See 231 N.Y.S.2d at 658-60.


Footnote 14:

     Id. at 661. 


Footnote 15:

     See Seaman v. State, 825 P.2d 907, 908-09 (Alaska App. 1992)
(holding that AS 12.20.010 does not bar successive prosecutions for
different criminal acts even though those acts arise from a
"continuous criminal episode"). 


Footnote 16:

     515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995).


Footnote 17:

     See, 515 U.S. at 403-04, 406; 115 S.Ct. at 2208, 2209.  See
also Williams v. Oklahoma, 358 U.S. 576, 586; 79 S.Ct. 421, 427; 3
L.Ed.2d 516 (1959). 


Footnote 18:

     805 P.2d 987 (Alaska App. 1991). 


Footnote 19:

     Id. at 993.