Summary
In First Meridian Planning the Court held that “although the mere failure to disclose information is not usually sufficient to establish larceny by false pretenses, the failure of a seller of securities to disclose every material fact may be the basis of a larceny conviction”.
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Argued September 12, 1995
Decided November 2, 1995
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Patricia D. Marks, J.
O'Connell and Aronowitz, Albany (Gloria Herron Arthur and Stephen R. Coffey of counsel), for First Meridian Planning Corporation and others, appellants.
Borstein, Sheinbaum Lurie, New York City (Leon Baer Borstein and James B. Sheinbaum of counsel), for Donald Kagin, appellant. Howard B. Arber, Hempstead, and Gregg Roth for Neil Berman, appellant.
Dennis C. Vacco, Attorney-General, New York City (David Farman, Victoria A. Graffeo, John H. Carley, Rebecca Mullane, Ray Cerreta and Christine Duisin of counsel), for respondent. Ganz, Hollinger Towe, New York City (David L. Ganz of counsel), and George D. Hatie, of the Michigan Bar, admitted pro hac vice, for Industry Council for Tangible Assets and another, amici curiae.
The 39-count indictment in this case arose out of an investigation by the Attorney-General of the investment promotional activities, commencing in 1982, of defendant First Meridian Planning Corp. (First Meridian), its officers and sales personnel. First Meridian portrayed itself to the investing public as a knowledgeable, experienced financial planning enterprise competent to advise clients on investment decisions through the formulation of a personalized investment plan tailored to the individual financial needs and objectives of each investor. In fact, however, First Meridian's plans invariably were limited to three highly leveraged investment vehicles — numismatic coin portfolios, art portfolios and condominiums in Florida and Indiana — in which First Meridian or, in coin portfolio purchases, its codefendant coin dealers, would arrange for the financing of the borrowed portion of the investment acquisitions.
Appellant Roger V. Sala was president and chief operating officer of First Meridian. Appellants Roger C. Sala and Meridian Arts (a First Meridian subsidiary) worked with First Meridian in promoting investments in the works of a group of local artists they had assembled. All of those appellants will be collectively referred to as the First Meridian defendants. Appellants Donald Kagin and Neil Berman were principals in four corporate coin dealerships who were codefendants in the indictment (hereinafter the coin dealer defendants).
The first count of the indictment charged all but one of the defendants with the crime of scheme to defraud in the first degree (Penal Law § 190.65). In addition, various defendants were charged with counts of fraud in the sale of securities (General Business Law § 352-c), and grand larceny in the second or third degrees (in connection with sales of coins, artworks and condominiums to individual investors), failure to register as a commodity broker-dealer (General Business Law § 359-e [k]) and failure to register as a commodity investment advisor (id.).
Defendant Donald Kagin, an officer of defendants Kagin's Numismatic Investment Corp. and Kagin's Numismatics Inc., was not charged under count 1 of the indictment. He, however, was named as a defendant in various counts charging fraud in the sale of securities in violation of General Business Law § 352-c (6) and grand larceny, third degree, in connection with the sale of numismatic coin portfolios to individual investors.
Following defense motions to dismiss, County Court dismissed the first count of the indictment as duplicitous. The court also dismissed all of the remaining counts of the indictment against the coin dealer defendants. It held that the evidence before the Grand Jury was insufficient to show their criminal responsibility for the larcenies allegedly committed against individual investors. County Court further held, as a matter of law, that the sale of numismatic coins did not constitute the sale of securities and, therefore, it granted the motions by defendants Kagin, Berman and several other coin dealer defendants to dismiss the counts of fraud in the sale of securities. Finally, the Trial Judge dismissed all counts against the coin dealer defendants charging them with failure to register as a commodity broker-dealer.
The Appellate Division reinstated count 1 of the indictment, concluding that it appropriately alleged and the Grand Jury could infer from the evidence, a single continuing scheme to defraud; thus, count 1 was not duplicitous ( 201 A.D.2d 145). The Appellate Division further held that there was sufficient evidence presented to the Grand Jury to support a prima facie finding that the sale of numismatic coin portfolios for investment purposes in this case constituted the sale of securities. Therefore, the Appellate Division reinstated the counts of fraud in the sale of securities against the coin dealer defendants. The Court also found the evidence sufficient to support a reasonable inference that the coin dealer defendants shared the larcenous intent of the First Meridian personnel and, hence, reinstated the larceny counts of the indictment against those defendants. As to two larceny counts, however, the Court found the proof of the value of the property taken insufficient to sustain charges higher than grand larceny in the fourth degree and modified those counts accordingly. Finally, the Appellate Division sustained County Court's dismissal of counts 38 and 39 of the indictment charging defendants with failing to register as a commodity broker-dealer, and the Attorney-General has not sought to cross-appeal from that ruling.
I
We agree with the Appellate Division that count 1 of the indictment is not invalid for facial duplicity, that is, charging in a single count the commission of more than one offense (see, CPL 200.30). Duplicitous indictments are disallowed because of the danger that a jury may vote to convict on a count without having reached a unanimous verdict on the charges pleaded therein, and because it may undermine a subsequent double jeopardy defense (see, People v Keindl, 68 N.Y.2d 410, 418).
Where, however, a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the indictment may charge the continuing offense in a single count (see, id., at 421; see also, People v Shack, 86 N.Y.2d 529, 540 [decided today]; People v Sanchez, 84 N.Y.2d 440, 448). Undoubtedly, the crime charged in count 1 of the indictment, scheme to defraud in the first degree, can by its very nature be committed by multiple acts and permits, if not requires, characterization as a continuing offense committed over time. Thus, a person is guilty of a scheme to defraud when "he [or she] * * * engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons" (Penal Law § 190.65 [a] [emphasis supplied]). Accordingly, count 1 of the indictment is not facially duplicitous. To avoid the danger that defendants may be convicted on count 1 with less than a unanimous verdict, the trial jury in this case should be instructed that they must all agree upon the existence of the same single scheme to defraud and must also be unanimous as to each defendant found guilty that he or she participated in that same over-all fraudulent scheme alleged in the indictment (see, United States v Mastelotto, 717 F.2d 1238, 1247).
We likewise reject appellants' alternative contention that count 1 is fatally duplicitous because the evidence before the Grand Jury would not support the existence of a single scheme to defraud but, at most, the existence of disparate, multiple schemes to defraud involving unrelated participants (i.e., separate conspiracies to fraudulently induce investments in coins, artworks and condominiums, respectively). As the Appellate Division correctly recognized, the Legislature in amending the Penal Law to add crimes based on a scheme to defraud (Penal Law § 190.60, 190.65; L 1976, ch 384), modeled the offenses upon the Federal mail fraud statute (see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 190.60, at 423). Therefore, we may look to Federal precedents applying similar statutory language which hold that, despite the presence of some diversity of criminal actors, modalities and victims, the evidence may yet support the existence of a single, unitary over-all scheme to defraud.
Thus, in United States v Morse ( 785 F.2d 771 [9th Cir]), the court was presented with parallel facts to the instant case — the bilking of investors through the promotion of several different investment vehicles as income-producing tax shelters, in which the codefendants played differing roles with respect to different victims and investment programs at different times. The court nonetheless ruled that such factors did not negate the existence of a single scheme (see, id., at 774). In Owens v United States ( 221 F.2d 351 [5th Cir]), the court similarly held that "the defrauding of different people over an extended period of time, using different means and representations, may constitute but one scheme" (id., at 354). That court found that "the necessary unity deriv[ed] from the fact that the technique planned and used in each transaction is of the same general type" (id., at 355). An additional factor the court in Owens relied upon as pointing to a unitary scheme was that a single corporation controlled by the defendants played some role in defrauding all of the victims (id.). The Second Circuit in United States v Crosby ( 294 F.2d 928, cert denied sub nom. Meredith v United States, 368 U.S. 984) held a single conspiracy could be inferred from "[a] mail fraud scheme consisting of a large number of similar transactions, conducted by a constant nucleus with differing subordinates" (id., at 945).
Under the foregoing precedents, the evidence before the Grand Jury in the instant case was prima facie sufficient to permit the Grand Jury reasonably to infer the existence of a unitary scheme to defraud. First, the proof disclosed, and the indictment alleged, common techniques, misrepresentations and omissions of material facts employed in all transactions. These included: the invariable sales methodology used with all First Meridian potential clients of a series of home visits in which investors were led to believe that an individualized investment plan was to be prepared; misrepresentations that leveraged purchases of numismatic coin portfolios, artworks and condominiums were each low-risk, high-yield, highly liquid investments (the coin dealer defendants participated in these misrepresentations as to coin portfolio purchases); assurances as to all three investment vehicles that the value of the investments would be monitored by experts in the field; the furnishing of false updated appraisals; and the concealment of material fact that First Meridian and the coin dealer defendants would be superimposing substantial commissions paid to them as additional transactional costs upon acquisition of the asset, making it even more remote that investors would ever realize a profit upon eventual resale. These common aspects of all transactions, through which some 800 First Meridian clients were induced to part with more than $64 million, strongly support the existence of a unitary scheme to defraud.
A second factor militating in favor of a single scheme to defraud was the pivotal role played by First Meridian in all of the transactions, as a "constant nucleus" through whom the contacts with all investors were initiated and maintained (see, United States v Crosby, supra; see also, United States v Zemek, 634 F.2d 1159, 1168, cert denied sub nom. Carbone v United States, 450 U.S. 916 [in finding a single fraudulent scheme, a court looks for "a rim sufficient to connect the various spokes of a single conspiratorial wheel"]). Thus, the claim of the coin dealer defendants of unawareness of and the absence of any participation in First Meridian promotions of investments in artworks and condominiums is unavailing to negate the existence of a single over-all scheme to defraud. "[W]hen a conspirator `embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them'" (United States v Crosby, 294 F.2d, at 945, supra, quoting United States v Andolschek, 142 F.2d 503, 507).
II
The Appellate Division, in our view, also correctly concluded that, based upon the evidence concerning the conduct of the promotions, the nature of the offers made and the promised results, the Grand Jury could find that the sale of numismatic coin portfolios here constituted the sale of securities so as to support the validity of the counts of the indictment charging the First Meridian and coin dealer defendants with fraud in the sale of securities. Under the Martin Act (General Business Law, art 23-A, § 352 et seq.) criminal liability may be imposed upon "[a]ny person * * * who intentionally engages in fraud * * * while engaged in inducing or promoting the * * * sale * * * within or from this state of any securities * * * as defined in this article" (General Business Law § 352-c [emphasis supplied]). The Martin Act defines securities as "stocks, bonds, notes, evidences of interest or indebtedness or other securities" (General Business Law § 352 [emphasis supplied]). In All Seasons Resorts v Abrams ( 68 N.Y.2d 81), we expressly adopted as one set of criteria for "other securities" under the Martin Act the tripartite test enunciated in Securities Exch. Commn. v Howey Co. ( 328 U.S. 293) to determine whether a given property interest constituted a "security" when offered or sold. In Howey, the Supreme Court broadly equated securities under the Federal securities laws with investment contracts, holding that "an investment contract * * * means a contract, transaction, or scheme whereby a person [1] invests his money [2] in a common enterprise and [3] is led to expect profits solely from the efforts of the promoter or a third party" (id., at 298-299). In People v Landes ( 84 N.Y.2d 655), this Court also expressly held that, in criminal prosecutions under the Martin Act, investment contracts are "other securities" (id., at 660, n 1).
The primary argument of the First Meridian defendants and defendants Kagin and Berman is that the sale of numismatic coins cannot be the sale of a security because the phrase "other securities" takes its meaning from the specific types of securities set forth in General Business Law § 352 (1), that is, "stocks, bonds, notes, evidences of interest or indebtedness". They claim that "other securities" must therefore refer to some document, akin to a bond, note, etc., evidencing an interest in tangible or intangible property, and cannot refer to the property or commodity itself, in this case numismatic coins. We disagree. In Securities Exch. Commn. v Howey (supra), the Supreme Court in articulating its three-fold functional test for an investment contract/security, specifically eschewed requiring the existence of some "paper" formally evidencing the interest offered or sold, "it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical asset employed in the enterprise" ( 328 US, at 299 [emphasis supplied]). In Securities Exch. Commn. v Joiner Corp. ( 320 U.S. 344), the Court rejected the same ejusdem generis argument appellants make here in their attempt to restrict the meaning of "other securities" (id., at 349; see also, id., at 351, n 8). The Court in Joiner also rejected a strict construction narrowly limiting the meaning of "security", even in criminal prosecutions under the Federal securities laws (see, id., at 354-355) and held that these canons of construction will not be followed when their application would conflict with the general remedial purposes of the securities laws.
The Federal courts have repeatedly applied the teachings of Howey and Joiner to find that arrangements for the purchase of various tangible properties or commodities, under circumstances paralleling the sale of coin portfolios here, constituted the sale of securities (see, Miller v Central Chinchilla Group, 494 F.2d 414 [chinchillas]; Glen-Arden Commodities v Costantino, 493 F.2d 1027 [casks of scotch whiskey]; Kemmerer v Weaver, 445 F.2d 76 [beavers]; Jenson v Continental Fin. Corp., 404 F. Supp. 792 [gold and silver coins]; Securities Exch. Commn. v Brigadoon Scotch Distribs., 388 F. Supp. 1288 [rare coin portfolios]).
Moreover, in People v Landes ( 84 N.Y.2d, at 660, n 1, supra), we upheld a conviction under the Martin Act despite defendant's contention that his failure to issue certificates evidencing the promised corporate stock precluded criminal liability based upon a sale of securities. Thus, to require in all Martin Act prosecutions that a fraudulently induced investment contract result in the issuance of some formal instrument evidencing the interest in the property sold would be inconsistent with the functional approach of the Howey case and would permit manipulation of investment transactions so as to thwart the protective and remedial purposes of the Act.
The evidence here was sufficient to meet the three elements of the Howey test. Uncontestably, the First Meridian clients were induced to purchase numismatic coin portfolios for the purpose and in the expectation of making a profit from ultimate resale, an investment of money satisfying the first prong of Howey. That investment was in a common enterprise, as the second element of Howey has been construed by the courts. It is not required that the investor acquires a share in a common fund. Rather, the common enterprise factor can be established by proof that "the fortunes of all investors are inextricably tied to the efficacy [of those seeking the investment or a third party]" (Securities Exch. Commn. v Koscot Interplanetary, 497 F.2d 473, 479; see, Securities Exch. Commn. v Turner Enters., 474 F.2d 476, 482, n 7, cert denied 414 U.S. 821; see also, Glen-Arden Commodities v Costantino, 493 F.2d, at 1035, supra). We note in this regard that in the Howey case itself, the Court found that the common enterprise factor was established although investors purchased individual orange grove lots, rather than an interest in an undivided entire grove (see, Securities Exch. Commn. v Howey Co., 328 US, at 295, supra).
There was also evidence in the record before the Grand Jury to establish the final factor in the Howey definition of security, that the profits are expected to be derived "solely from the efforts of the promoter or a third party" (id., at 299, supra). In applying this element of the Howey test, the courts have not construed it literally, but realistically. It is sufficient if the promoter's (or third person's) efforts are "the undeniably significant ones, those essential managerial efforts, which affect the failure or success of the enterprise" (Securities Exch. Commn. v Turner Enters., 474 F.2d, at 482, supra). The representations made personally by First Meridian sales personnel and by the coin dealer defendants in their sales literature assured investors that a critically important guarantee of the profitability of the numismatic coin portfolio investments was the expertise of the dealers in selecting the coins to be purchased, monitoring their value in a fluctuating market, aiding in making resale decisions and providing assistance with resales. Thus, the evidence easily suffices to prima facie satisfy the third prong of a Howey test.
To conclude on this issue, a prima facie case was established before the Grand Jury that the sales of numismatic coins by the coin dealer defendants, through First Meridian, constituted the sales of securities, thus supporting the validity of the counts of the indictment charging fraud in the sale of securities. The counter argument of defendants Kagin, Berman and First Meridian, that they merely sold a commodity, the tangible coin portfolio itself, is unpersuasive. The sales pitch used to induce these purchases offered a package which included not only the tangible coins but a spectrum of supposedly profit-enhancing services, all part of an investment plan. The Second Circuit's rejection of a similar claim in Glen-Arden Commodities v Costantino (supra) is especially apt here: "it ill behooves appellants, after enticing their customers with fancy brochures, touting their investment plan, now to claim that there was no investment plan but the mere sale of an unadorned commodity" (493 F.2d, at 1034-1035, supra). At the trial, of course, the People will have the burden of establishing beyond a reasonable doubt under jury instructions based on the criteria herein discussed, that defendants' sales of coin portfolios constituted the sales of securities (Securities Exch. Commn. v Joiner Corp., 320 U.S. 344, 355, supra; United States v Morse, 785 F.2d, at 775-776, supra; Roe v United States, 287 F.2d 435, 440, cert denied 368 U.S. 824).
We also reject defendant Kagin's claim that, if General Business Law § 352-c (6) is so construed to include the sale of numismatic coins as a sale of securities for purposes of criminal prosecution, the statute is unconstitutionally vague. The "void for vagueness" doctrine requires that a penal statute "provide the ordinary citizen with adequate notice of the exact conduct prohibited" (People v Bright, 71 N.Y.2d 376, 384), while at the same time affording law enforcement officials some objective standard to avoid "the possibility that the law will be arbitrarily enforced" (id.). Of these dual purposes of the doctrine, the provision of minimal guidelines to discourage arbitrary or discriminatory enforcement is the more important objective (see, Kolender v Lawson, 461 U.S. 352, 358). The doctrine, however, recognizes that some forms of conduct which a State may validly make subject to penal sanctions cannot, and need not, be defined with precision (United States v Petrillo, 332 U.S. 1, 7-8). Of special significance here, the vagueness doctrine does not adjudge the language of a criminal statute in the abstract, but rather in the "animating context of well-defined usage * * * and * * * court construction which determines its meaning" (Beauharnais v Illinois, 343 U.S. 250, 253).
As discussed above, well before defendants engaged in the conduct which is the subject of this indictment, the New York courts adopted the Howey test for determining whether the sale or offer to sell an interest in property constitutes the sale of a security. Moreover, as has been amply demonstrated, also well before defendants embarked on their investment promotion activities, an extensive body of precedent construing and applying the Howey definition of security had held that commodities and other forms of tangible personal property or even real property could constitute securities, if the circumstances of the offer or sale thereof met the three-pronged Howey test.
Thus, judicial construction of "other securities" was amply sufficient to meet the requirements of the void for vagueness doctrine in enforcing the Martin Act by providing adequate notice to the public, and objective standards for law enforcement officials. The vagueness doctrine is "not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited" (Colten v Kentucky, 407 U.S. 104, 110).
We have considered the remaining contentions of the First Meridian defendants and defendants Kagin and Berman, including their claims regarding the sufficiency of the evidence to establish complicity in the larceny counts of the indictment, and the adequacy of the Grand Jury instructions, and find them also unpersuasive.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH and CIPARICK concur.
Order affirmed.