Appeal from the Iowa District Court for Warren County, Rebecca Goodgame Ebinger, Judge. The defendant appeals his conviction and sentence for fraudulent practice following a jury trial.
Mark E. Weinhardt and Todd M. Lantz of Weinhardt & Logan, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson and Robert H. Sand, Assistant Attorneys General, for appellee.
This case involves an individual who knowingly submitted inaccurate bills to a city while serving as its attorney. The State charged the individual with felonious misconduct in office, see Iowa Code § 721.1(1), (2), (3) (2011), first-degree theft, see id. § § 714.1(1), .1(3), .2(1), and first-degree fraudulent practice, see id. § § 714.8(4), .9. The State maintained the defendant had inflated his earnings by billing for trials and prosecutions that did not actually occur. The defendant conceded his past bills were inaccurate, but argued the city largely condoned this practice. He further maintained that he did not bill for more time than he had actually worked overall on city matters.
At trial, the district court dismissed the felonious misconduct charge, and the jury acquitted the defendant of theft. However, the jury found the defendant guilty of first-degree fraudulent practice, and he was sentenced to an indeterminate term of ten years in prison. The defendant now appeals his conviction and sentence.
On appeal, the defendant challenges certain jury instructions. He argues the fraudulent practice marshaling instruction was deficient because it did not require the jury to find an intent to deceive as an element of the offense. The defendant also faults the instructions addressing the degree of the fraudulent practice. See Iowa Code § 714.14. The defendant insists those instructions failed to clearly require the jury to determine he had obtained money or property through each false entry that was being aggregated, as the aggregation statute requires, not merely that more than ten thousand dollars was involved. Finally, as an additional ground for appeal, the defendant argues the district judge hearing his case should have recused herself.
Upon our review, we agree that the jury instructions were flawed as contended by the defendant, and therefore, we reverse the judgment below and remand for a new trial. We need not and do not reach the question of whether the district judge should have recused herself, but instead exercise our authority to direct that the new trial take place before a different judge.
I. Background Facts and Proceedings.
John Hoyman grew up in Indianola and returned there to practice law beginning in 1984. In 1986, Hoyman began working part time as the Indianola city attorney in addition to managing his own private practice. Hoyman's duties as city attorney included prosecuting simple misdemeanor and traffic cases, representing the city's interests in various civil matters, signing appeal bonds, preparing ordinances, reviewing contracts, providing legal opinions to the city, attending city council meetings, and drafting contracts and other documents for the city. See Indianola, Iowa, Code of Ordinances ch. 20.
For the services performed as city attorney, Hoyman would submit a monthly bill to the Indianola city clerk. The bills included a line item for Hoyman's monthly retainer of $1000, which covered attendance at city council meetings and short phone calls. Hoyman then billed the city hourly for additional work not covered by the retainer. For example, Hoyman's bills listed hours he spent prosecuting simple misdemeanor and traffic matters. For each of these matters, he would identify the individual he had prosecuted. Additionally, Hoyman billed the city for civil matters not covered by his retainer.
Over time, Hoyman became less methodical in tracking and reporting his time spent on city legal work. Around 2004, Hoyman received permission from the then-city manager to divide the entire time he spent in trials evenly among all the individuals who went to trial that day. Also during that time period, the city clerk who processed Hoyman's bills informed Hoyman he could disclose the name of only one of the cases he prosecuted, followed by " et al.," rather than listing all the remaining cases by name. At no time was Hoyman given permission to invent names or bill for trials that did not occur.
In approximately 2006, Hoyman stopped using the names of actual individuals he had prosecuted and began putting phantom names on his bills. Hoyman would use names of people he knew or would select names at random from a phone book or a platting map of Warren County. Additionally, Hoyman began including more trials on his bills than had actually taken place on certain days.
In August 2012, the acting city manager suspected that one of Hoyman's bills was inaccurate. She reported the problem to the Indianola police chief. The chief of police attempted to cross-reference the name Hoyman had listed on the invoice with police records and discovered the Indianola police department had never issued a citation to a person by that name. The police chief then requested more of Hoyman's past invoices from the city manager and determined they also contained names of individuals who had not been cited by the police department. Due to the potential conflict in having a city police department investigate the city's own attorney, the chief of police asked the Iowa Division of Criminal Investigation (DCI) to look into the matter further.
DCI Special Agent Scott Peasley was assigned to investigate Hoyman's billing. Peasley compared Hoyman's invoices to the handwritten court calendar maintained by the Warren County judicial clerk. He determined that most of Hoyman's bills from 2011 and 2012 contained incorrect names and that he had billed for more trials than had actually taken place. Hoyman had even billed for trials on some days when no trials had taken place.
On September 13, 2012, Peasley and another agent interviewed Hoyman about the inaccurate bills. Hoyman admitted making up the names of individuals shown on
his bills. He claimed, though, that the names mattered to no one. Hoyman also admitted billing hours for " trials" when in fact no trials had taken place. Hoyman maintained, however, that any overbilling for trial matters merely compensated for underbilling in other areas. Hoyman asserted that while his hours were mislabeled, he never billed on the whole for more time than he actually spent working on behalf of the city. In fact, he claimed he had undercharged the city. Hoyman did say in the interview, " I'm f***ed . . . if we look at the data," and, " If I go down, I go down."
On May 15, 2013, the State charged Hoyman with theft in the first degree, see Iowa Code § § 714.1(1), .1(3), .2(1), fraudulent practice in the first degree, see Iowa Code § § 714.8(4), .9, and felonious misconduct in office, see Iowa Code § 721.1(1), (2), (3). The State later amended the trial information to clarify that it was pursuing the fraudulent practice charge under section 714.14, which permits the aggregation of money from multiple acts to qualify as a single fraudulent practice. See id. § 714.14. First-degree theft and first-degree fraudulent practice are class " C" felonies. Id. § § 714.2(1), .9. Felonious misconduct in office is a class " D" felony. Id. § 721.1. Hoyman pled not guilty to all three charges.
On August 26, Hoyman filed a motion for the case to be assigned to a judge other than two judges he specifically identified. Hoyman explained that he had a personal relationship with both judges and that both had expressed their intention to recuse themselves from the matter. In response, the chief judge of the district specially assigned Hoyman's case to a designated judge of District 5C, noting the special assignment was warranted due to possible conflicts with judges in the 5A and 5B judicial districts.
Following the special assignment, a hearing took place on September 16 before the newly assigned judge on Hoyman's motion to dismiss Count II and the State's motion for change of venue. The district judge introduced herself and continued:
Today before the Court we have two issues: the motion to dismiss Count II and the motion for change of venue. Before we discuss those, I wanted to make a brief disclosure to the parties. I know both of the attorneys in this matter, and I wanted to make sure that the parties are aware of the fact that my husband is a good friend of [the prosecutor,] Mr. Sand[,] and my daughter was the flower girl in his wedding. I did not attend the wedding, but there is that relationship there.
I've consulted the Code and the Rules of Judicial Conduct. I don't believe there's anything that would preclude me from continuing to preside in this matter, but I wanted to make that disclosure to the parties.
Hoyman was given time to confer with his attorney, who asked the judge to provide additional information about her relationship with the prosecutor:
MR. WEINHARDT: Thank you for the brief delay, Your Honor. If I may ask, when was the wedding? MR. SAND: June 2nd, 2010.
MR. WEINHARDT: Okay. And if I may ask of either the Court or Mr. Sand, notwithstanding the fact that the relationship is between Your Honor's spouse and Mr. Sand, do Your Honor and Mr. Sand see each other in social
situations? THE COURT: I have been in Mr. Sand's home, and he has been to my home on occasions. I don't meet with Mr. Sand outside of the context of my husband ever. I've never had the opportunity to be personally in a personal relationship with Mr. Sand outside of the context of his relationship with my spouse.
Based on this information, Hoyman's attorney requested the district court to recuse itself from the case:
Your Honor, I've conferred with my client about this, and based upon what we expected about the facts -- and this is sort of consistent with that -- it's our belief that this does create an appearance issue, even if it is not a substantive issue. And it's difficult, without delving into much more facts, to get into that. But we do believe that it creates an appearance issue, and so we would ask that the Court recuse.
The court denied the motion to recuse:
Thank you for your comments. The Court declines to recuse. The issues in this case are -- I have no knowledge of the defendant. I know Mr. Weinhardt as well. I see Mr. Weinhardt at school events and have known him in my life prior to the bench.
I don't believe that the Rules of Judicial Conduct require me to recuse. I was just refreshing my recollection, and I did research prior to today's events. In this instance, there is a -- particularly referencing Iowa Court Rule 51:2.11, which requires recusal in cases where any appearance would suggest that the Court would [not] be impartial.
In this instance, the Court believes that my obligation to hear cases that come before me would require me to continue to preside over this case. 51:2.7 requires, " A judge shall hear and decide matters assigned to the judge . . . ." This case has been specifically assigned to me. I don't know either of the two other judges who were previously recused. I have no knowledge of the defendant, and I am [uniquely] situated to be able to preside over this in a fair and impartial matter. The motion to recuse is denied.
Trial took place from December 16 to December 19. The crux of Hoyman's defense was that while his record-keeping and billing processes were inaccurate, he never intended to collect money he had not earned from the city. Hoyman asserted he had never submitted a monthly bill totaling more hours than he had actually worked. At the close of the defense case, the court granted Hoyman's motion for judgment of acquittal on the felonious misconduct in office charge and thereby dismissed Count III. The court also limited the time period covered by the remaining charges to 2011 and 2012, finding the State had presented insufficient evidence on earlier time periods.
The court gave the following marshaling instruction on Count II, the fraudulent practice charge:
JURY INSTRUCTION NO. 23 FRAUDULENT PRACTICES: MARSHALING INSTRUCTION
In Count II of the Trial Information, defendant John Robert Hoyman is charged with Fraudulent Practices. The State [must] prove all of the following elements:
1. From 2011 through 2012, defendant Hoyman made any entry in a public record or records of a business; and
2. Mr. Hoyman knew the entry to be false.
If the State has proved all of these elements, the defendant is guilty. You
must then determine the degree of Fraudulent Practice, as explained to you in Instruction Number 26. If the State has failed to prove any of the elements, defendant Hoyman is not guilty.
In addition, the court instructed the jury as follows relating to degrees of fraudulent practice:
JURY INSTRUCTION NO. 25 FRAUDULENT PRACTICES -- DEFINITION -- SINGLE
If money is obtained by two or more acts from the same person or location so that the fraudulent practices are attributable to a single scheme, plan, or conspiracy, these acts may be considered a single fraudulent practice and the value may be the total value of all the money involved.
JURY INSTRUCTION NO. 26 DEGREES OF FRAUDULENT PRACTICES
If you find defendant Hoyman guilty of Fraudulent Practices, you should then determine the degree of Fraudulent Practices. Attached to the verdict form is a question which must be answered, and by so doing, ...