Opposition — West v. Iowa

et ane

1

fe ;

—~— 44 iS

JUL 28 1977

In The i et F_OLER

Supreme Court of the United States

October Term, 1976

No. 77-72

‘o™

Ww

FRANK R. WEST,

Petitioner,

vs.

STATE OF IOWA,

Respondent.

LY.

Vw

Petition for a Writ of Certiorari

to the Supreme Court of Iowa

ia”

Vv

BRIEF FOR RESPONDENT IN OPPOSITION

—

Vv

RICHARD C. TURNER

Attorney General of lowa

State Capitol

Des Moines, lowa 50319

Gary H. Swanson

Assistant Attorney General

Joun R. Perkins

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Respondent

Eee

COCKLE PRINTING CO., 1822 St. Mary's Ave., Omaha

TABLE OF CONTENTS

I IN coc cttiets cnstcege csecedini-cisdincaaabeanaenecinaaiaaiupnena Oe

ag RCC Ee ERE Rigs ce A ere Ls

Question Presented 0.

Constitutional Provision & Statutes Involved 000000000...

1

2

2

Beetement of the Case. 2. , 2

3

8

BD | piciicpeninatcintnnenies ete

STELLATE A ATRL TTI LATOR ORI AED

CITATIONS

CASES:

Bouie v. City of Columbia, 378 U. 8. 347, 84S. Ct.

1697, 12 L. Ed. 2d 894 (1964) 00. seuee Sy T

Marks v. United States, — U. S. —, 51 L. Ed. 2d

ee | ee ene eae

Rose v. Locke, 423 U. S. 48, 46 L. Ed. 2d 185,

a

Uwnitep States ConstTImtuTion:

Fourteenth Amendment. .............. Feduidncienamiede 2,5

STATUTES:

§ 713.1, Code of Towa, 1975 occ cccswmmnmnemnn 2, 3, 4, 5, 6, 7

§ 719.1, Code of Towa, 1975 one 2

In The

Supreme Court of the United States

October Term, 1976

'—

Ww

No. 77-72

y=

Vw

FRANK R. WEST,

Petitioner,

—,

vs.

STATE OF IOWA,

Respondent.

ft

Vv

Petition for a Writ of Certiorari

to the Supreme Court of. Iowa

it

Vw

BRIEF FOR RESPONDENT IN OPPOSITION

—_

—

OPINION BELOW

The opinion of the Iowa Supreme Court (App. A,

Petition) is reported at 252 N. W. 2d 457 (Iowa 1977).

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

’

2

QUESTION PRESENTED

Whether a holding by the [owa Supreme Court that

the actions of Petitioner Frank R. West as set forth in

his indictment could violate § 713.1, Code of Iowa, 1975, is

an unforeseeable expansion of that statute prohibited by

the Due Process Clause of the Fourteenth Amendment to

the Constitution of the United States.

o

CONSTITUTIONAL PROVISION AND STATUTES

INVOLVED

The Iowa false pretenses statute, $713.1, Code of

Iowa, 1975, the Iowa conspiracy statute, 4 719.1, Code of

Iowa, 1975, and the Fourteenth Amendment to the United

States Constitution are set forth as Appendix D of the

Petition.

>

STATEMENT OF THE CASE

Petitioner was indicted with Robert E. Lee on thirty

charges of conspiracy to violate § 713.1, Code of Iowa,

1975, in violation of § 719.1, Code of Iowa, 1975, and of

violating § 713.1, Code of Iowa, 1975. The factual basis

for the indictments is set out in the opinion of the lowa

Supreme Court (App. A, Petition).

Prior to the trial date, the trial court set aside the

indictments on the ground that the minutes of testimony

attached to the indictments along with the bill of par-

ticulars that had been filed did not show any false state-

ment alleged to have been made was of a past or existing

fact as required under § 713.1, Code of Iowa, 1975, but

instead were statements of a promise to pay in the future

the false making of which did not violate § 713.1, Code of

Iowa, 1975 (App. C, Petition).

On appeal the Iowa Supreme Court reversed the trial

court, holding that a promise to perform an act in the

future made with no intent to perform constitutes a mis-

representation within the meaning of §713.1, Code of

Iowa, 1975, and ordered the case remanded for trial (App.

A, Petition).

From that judgment and the denial of their Petition

for rehearing (App. B, Petition) Petitioner petitions this

Court for a Writ of Certiorari to the Iowa Supreme

Court.

—

Vw

ARGUMENT

The Iowa Supreme Court did not expand the scope

of § 713.1, Code of Iowa, 1975. Petitioner points out four

quotes from the Iowa opinion in his statement of the

ease which he claims show that the acts committed by

him were not considered a crime under § 713.1, Code of

lowa, 1975, at that time.

A superficial reading of these quotes alone would

seem to indicate that the lowa Supreme Court has ex-

panded the meaning of 4713.1 to make previously legal

4

conduct now illegal. This is not the case however, as a

careful reading of the entire opinion reveals.

Petitioner relies heavily on Bouie v. City of Columbia,

378 U.S. 347, 84 S.Ct. 1697, 12 L. Ed. 894 (1964), for

support of this proposition.

The fact situation in Bowie is different from the case

at hand, that statute being very narrew in its scope and

very precisely worded. This Court held in Bowie:

‘‘There can be no doubt that a deprivation of the

right of fair warning can result not only from vague

statutory language but also from an unforeseeable

and retroactive judicial expansion of narrow and

precise statutory language.’’

The holding in Pouie was predicated on this narrow

and precise statute as this Court points out in Marks v.

United States, — U.S. —, 51 L. Ed. 2d 260, 975 S. Ct. —

(1977), when it stated:

‘The statutory language there was ‘narrow and pre-

cise’ 378 U.S. at 352, 84 S. Ct. at 1701, and that fact

was important to our holding that the expansive con-

struction adopted by the State Supreme Court de-

prived the accused of fair warning.”

Section 713.1, Code of Iowa, 1975, in contrast to the

statute involved in Bowie is broad and, as the case law

cited in the Iowa Supreme Csurt’s opinion shows, was

intended to cover a variety of illegal actions.

The answer to the question presented in this case is

found in Rose v. Locke, 423 U. S. 48, 46 L. Ed. 2d 185, 96

S. Ct. 243 (1975). A Tennessee statute forbid ‘‘crimes

against nature’? and the Defendant was convicted there-

under for committing the act of cunnilingus. The Defend-

5

ant argued first, that the Tennessee Supreme Court had

never before passed upon whether the commission of that

particular act was a violation of the statute and thus,

had no fair warning and second, the statute itself was

unconstitutionally vague. As Petitioner points out in his

Petition at page 6, this Court held that with respect to

the vagueness argument ‘‘the Due Process Clause requires

that the law give sufficient warning that men may conduct

themselves so as to avoid that which is forbidden’’ 423

U.S. at 50, 46 L. Ed.2d at 188.

Respondent does not understand Petitioner to be

challenging § 713.1, Code of Iowa, 1975, on the second

ground urged in Rose that it is unconstitutionally vague

and thus violates the Due Process Clause of the Four-

teenth Amendment to the United States Constitution by

failing to give a person sufficient warning of what con-

duct is expected of him.

It is the reasoning on the first ground set out in

Rose that is important to this case.

The Sixth Cireuit Court of Appeals sustained the

Defendant’s challenge in Rose in part because it was

unable to find any previous opinions by the Tennessee

Supreme Court applying the statute to the act of cun-

nilingus and thus concluded that the statute failed to give

fair warning.

This Court reversed after looking at the statutory

authority in Tennessee and concluding that:

‘¢ . . The Tennessee Supreme Court had given suffi-

ciently clear notice that § 39-707 would receive the

broader of two plausible interpretations, and would

be applied to acts such as those committed here when

6

-_ a case arose.’’ 423 U.S. at 52, 46 L. Ed. 2d at

In the case at hand the Iowa Supreme Court cites

numerous Iowa cases in support of its decision where

future promises and actions coupled with a present in-

ability or intention not to perform were held to be viola-

tions of § 713.1, Code of Iowa. Indeed, the Court cites

State v. Huckims, 212 Iowa 283, 234 N. W. 554, 559 (1931),

where it said:

‘‘One’s intention or knowledge is a fact as to which

he may make a false pretense and thereby (the other

elements being present) perpetrate the crime of cheat-

ing by false pretenses.”’

as support for the proposition that its holding is not an

enlargement of the statute.

In further support of its proposition the Court cited

State v. Foxton, 116 Iowa 81, 147 N.W. 347 (1914),

wherein:

‘*This court found that the presentation of a personal

check implied that Defendant had the ability to pay,

sustaining a false pretenses charge.’’

The Court went on to state in its opinion in this case:

“‘We are unable to perceive difference between a

finding that the false pretenses may be premised on a

false promise and a finding that Defendant misrepre-

sented an ability to pay. When a Defendant, know-

ing he is insolvent, promises to pay, he falsely repre-

sents his intention to pay.”

The Court further stated:

‘‘The Iowa cases addressing this last issue are all

marked by two characteristics which minimize their

value as legal precedent, namely, (1) that the cases

7

failed to base the results on the issue discussed here,

and (2) that the cases, all of early vintage, fail to

recognize the tenor of present day commercial enter-

prise. None of the cases hold a charge or conviction

of false pretenses invalid because of a failure to

allege or prove a misrepresentation of past or exist-

ing fact, although the premise appears in the text of

the opinions.’’

Justice McCormick in his concurring opinion obvi-

ously feels the Court’s holding has always been the law

in Iowa by pointing out that:

‘‘This case comes well within the principle that a

false promise may be coupled with a false representa-

tion of fact to constitute a false pretense. (Cita-

tions).’’

This Court held in Bouie v. Columbia, supra, at 12

L. Ed. 930, 378 U.S. 354, that:

‘Tf a judicial construction of a criminal statute is

‘unexpected and indefensible by reference to the in-

defensible by reference to the law which had been

expressed prior to the conduct in issue’ it must not

be given retroactive effect.”’

It is clear that the lowa Supreme Court did not

expand § 713.1, Code of Iowa, 1975, to include a new act

not previously thought to be criminal under a vague

statute, as was raised in Rose v. Locke, supra, nor did it

take a narrow and precise statute and expand it to con-

duct clearly outside its scope as in Bouie v. Columbia,

supra; instead it merely held specifically that a promise

to perform an act in the future made with no intent to

perform is a violation of § 713.1, Code of Iowa, a position

which was entirely consistent with its previous holdings

as set out in its opinion which holdings would give Peti-

tioner clear notice that his conduct would be held to be

illegal under § 713.1, Code of Lowa.

8

CONCLUSION

For the foregoing reason it is respectfully submitted

that this Petition for a writ of certiorari should be denied.

Respectfully submitted,

RICHARD C. TURNER

Attorney General of Iowa

GARY H. SWANSON

Assistant Attorney General

JOHN R. PERKINS

Assistant Attorney General

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, John R. Perkins, Assistant Attorney General for

the State of Iowa, hereby certify that on the 25th day of

July, 1977, I mailed three (3) copies of Brief for Re-

spondent in Opposition, correct Ist class postage pre-

paid to:

James P. Linn, of

Linn, Helms, Kirk & Burkett

Suite 410, Fidelity Plaza

Robert S. Kerr at Robinson

Oklahoma City, Oklahoma 73102

I further certify that all parties required to be served

have been served.

Joun R. Perkins

Assistant Attorney General

State Capitol

Des Moines, Iowa 50309