Chris Lazarini Examines Case in which Securities Broker Challenges Criminal Conviction, Arguing Violations of Brady Rule and Denial of Due Process

Securities Litigation Commentator

Bass, Berry & Sims attorney examined the case of State of Michigan vs. Dicken in which a broker sought to overturn her convictions for obtaining money by false pretenses, embezzlement and criminal enterprise. In her appeal, the broker argued the following:

  1. The prosecution failed to produce documents that “might have” contained evidence favorable to her, in violation of Brady v. Maryland.
  2. The prosecution’s securities expert improperly offered legal conclusions.
  3. The trial court abused its discretion and denied her due process by excluding her 75-minute recorded interview with state investigators, which she sought to use to establish her cooperation with investigators.
  4. The trial court abused its discretion by making a substantial departure from the sentencing guidelines on her criminal enterprise conviction.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

State of Michigan vs. Dicken, No. 322998 (Mich. App., 1/12/16) 

Under Michigan court rules, prosecutors must turn over to the defense police reports, exculpatory information or evidence, witness lists and statements, expert C.V.’s, and any expert report or a written description of the proposed expert’s testimony. 

Defendant broker was convicted of seven counts of obtaining money by false pretenses, one count of embezzlement from a vulnerable adult and one count of conducting a criminal enterprise, after the jury determined that she steered clients into risky limited partnership investments to obtain high commissions. The trial court sentenced her to concurrent prison terms of 23 months to five years for each false pretense conviction, 71 months to 15 years for the embezzlement conviction, and 140 months to 20 years for the criminal enterprise conviction. The latter term marked a significant upward departure from the state’s statutory sentencing guidelines. Defendant appealed as of right, seeking a new trial.

Defendant first argues that the prosecution failed to produce documents that “might have” contained evidence favorable to her, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court finds Defendant failed to carry her Brady burden. The mere possibility that evidence might be helpful to the defense cannot establish the materiality component of a Brady violation. Evidence is material, the Court states, if there is a reasonable probability that, had it been disclosed, the outcome would have been different. Here, Defendant did not specify anything in the withheld materials that might have assisted her defense and did not request an in camera review by the trial court.

Defendant next argues that the prosecution’s securities expert improperly offered legal conclusions. The Court disagrees, finding that the expert did not opine that Defendant committed a crime, but only that Defendant was negligent in failing to conduct due diligence on the limited partnership investment and making unsuitable investment recommendations. The question of intent and criminal responsibility, the Court explains, was properly left solely to the jury. Defendant also challenged the sufficiency of the prosecution’s pre-trial summary of the expert’s expected testimony. The Court finds no abuse of discretion in not requiring a more in-depth summary, because the record reveals that Defendant’s counsel conducted a vigorous cross-examination of the expert. 

Defendant next argues that the trial court abused its discretion and denied her due process by excluding Defendant’s 75-minute recorded interview with state investigators, which Defendant sought to use to establish that she cooperated with investigators. The Court notes that, while relevant evidence is admissible, it may be excluded by considerations of undue delay, waste of time or needless presentations of cumulative evidence. Here, Defendant testified about her cooperation, the investigator admitted that Defendant cooperated and the trial court gave Defendant the right to show portions of the video for impeachment purposes, although Defendant elected not to do so.

Finally, Defendant argues that the trial court abused its discretion by making a substantial departure from the sentencing guidelines on her criminal enterprise conviction. The Court remands to the trial court the issue of the reasonableness of its departure from the sentencing guidelines on the criminal enterprise conviction, but it affirms the convictions and sentencing for false pretenses and embezzlement. 

The Court notes its review of several of Defendant’s arguments was limited to whether the trial court committed plain error because Defendant failed to raise the arguments at the trial court level. It does not appear, however, that the Court would have reached a different conclusion on any of the issues had a more exacting standard of review applied.

Related Professionals
Related Services
Securities Litigation Commentator

Bass, Berry & Sims attorney examined the case of State of Michigan vs. Dicken in which a broker sought to overturn her convictions for obtaining money by false pretenses, embezzlement and criminal enterprise. In her appeal, the broker argued the following:

  1. The prosecution failed to produce documents that “might have” contained evidence favorable to her, in violation of Brady v. Maryland.
  2. The prosecution’s securities expert improperly offered legal conclusions.
  3. The trial court abused its discretion and denied her due process by excluding her 75-minute recorded interview with state investigators, which she sought to use to establish her cooperation with investigators.
  4. The trial court abused its discretion by making a substantial departure from the sentencing guidelines on her criminal enterprise conviction.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

State of Michigan vs. Dicken, No. 322998 (Mich. App., 1/12/16) 

Under Michigan court rules, prosecutors must turn over to the defense police reports, exculpatory information or evidence, witness lists and statements, expert C.V.’s, and any expert report or a written description of the proposed expert’s testimony. 

Defendant broker was convicted of seven counts of obtaining money by false pretenses, one count of embezzlement from a vulnerable adult and one count of conducting a criminal enterprise, after the jury determined that she steered clients into risky limited partnership investments to obtain high commissions. The trial court sentenced her to concurrent prison terms of 23 months to five years for each false pretense conviction, 71 months to 15 years for the embezzlement conviction, and 140 months to 20 years for the criminal enterprise conviction. The latter term marked a significant upward departure from the state’s statutory sentencing guidelines. Defendant appealed as of right, seeking a new trial.

Defendant first argues that the prosecution failed to produce documents that “might have” contained evidence favorable to her, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court finds Defendant failed to carry her Brady burden. The mere possibility that evidence might be helpful to the defense cannot establish the materiality component of a Brady violation. Evidence is material, the Court states, if there is a reasonable probability that, had it been disclosed, the outcome would have been different. Here, Defendant did not specify anything in the withheld materials that might have assisted her defense and did not request an in camera review by the trial court.

Defendant next argues that the prosecution’s securities expert improperly offered legal conclusions. The Court disagrees, finding that the expert did not opine that Defendant committed a crime, but only that Defendant was negligent in failing to conduct due diligence on the limited partnership investment and making unsuitable investment recommendations. The question of intent and criminal responsibility, the Court explains, was properly left solely to the jury. Defendant also challenged the sufficiency of the prosecution’s pre-trial summary of the expert’s expected testimony. The Court finds no abuse of discretion in not requiring a more in-depth summary, because the record reveals that Defendant’s counsel conducted a vigorous cross-examination of the expert. 

Defendant next argues that the trial court abused its discretion and denied her due process by excluding Defendant’s 75-minute recorded interview with state investigators, which Defendant sought to use to establish that she cooperated with investigators. The Court notes that, while relevant evidence is admissible, it may be excluded by considerations of undue delay, waste of time or needless presentations of cumulative evidence. Here, Defendant testified about her cooperation, the investigator admitted that Defendant cooperated and the trial court gave Defendant the right to show portions of the video for impeachment purposes, although Defendant elected not to do so.

Finally, Defendant argues that the trial court abused its discretion by making a substantial departure from the sentencing guidelines on her criminal enterprise conviction. The Court remands to the trial court the issue of the reasonableness of its departure from the sentencing guidelines on the criminal enterprise conviction, but it affirms the convictions and sentencing for false pretenses and embezzlement. 

The Court notes its review of several of Defendant’s arguments was limited to whether the trial court committed plain error because Defendant failed to raise the arguments at the trial court level. It does not appear, however, that the Court would have reached a different conclusion on any of the issues had a more exacting standard of review applied.

In Case You Missed It: