Christopher J. Strope v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons ∗
Argued by teleconference
CHRISTOPHER J. STROPE
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1549-98-4 JUDGE DONALD W. LEMONS
APRIL 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
David F. Berry, Judge Designate
Michael T. Leibig (Zwerdling, Paul, Leibig,
Kahn, Thompson & Wolly, P.C., on briefs), for
appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Christopher J. Strope appeals his conviction of nine counts
of charitable contribution fraud, in violation of Code § 57-57.
On appeal, Strope contends (1) that the trial court erred by
granting the Commonwealth's motion to join his trial with a
codefendant and (2) that his conviction violates his
constitutional right to freedom of association under the First
Amendment to the United States Constitution. Finding no error,
we affirm his convictions.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Christopher Strope was the Executive Director of the
Virginia Coalition of Police and Deputy Sheriffs ("VCOPS"), an
organization comprised of police and deputy sheriffs'
organizations and unions across the Commonwealth. In 1995,
Strope entered into a contract retaining Atlantic Telemarketing,
Inc. ("ATI") to conduct telephone solicitations on behalf of
VCOPS.
Between November 21 and December 1, 1996, ATI telemarketers
made several calls to Stafford County residents to solicit
donations for VCOPS using a written script approved by Strope and
the president of ATI, James Bell. The callers claimed to be
either from the Stafford County Sheriff's Department or calling
on its behalf and said they were trying to raise money for the
families of slain officers, a battered women's shelter, a
homeless children's shelter and to purchase bulletproof vests.
Citizens were assured that their contributions would be used
solely in Stafford County. Several suspicious residents reported
these calls to the Stafford County Sheriff's Department, which
was not part of the campaign.
On December 2, 1996, in a telephone conversation between
Strope and Deputy Sheriff Timothy O'Leary, Strope confirmed that
ATI was currently soliciting donations for VCOPS, and assured
O'Leary that he was monitoring the callers and that they were
doing everything required of them. Strope gave O'Leary
conflicting information as to where the collected funds were
being allocated, whether Stafford County residents were targeted
for solicitation and whether donors were to be given receipts.
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Strope and Bell knew as early as September, 1996, that
Stafford County was an intended target of this telemarketing
campaign. Strope and Bell knew that the solicitors were
representing themselves as being from the Stafford County
Sheriff's Department. Similar complaints had been made in the
past. Strope and Bell did not discipline a single caller for
making misleading statements during this campaign. Of the
$322,000 raised by the campaign, less than 4% actually went to a
charitable purpose.
Strope and Bell were charged with identical counts of
attempted embezzlement, conspiracy, attempted false pretenses,
attempted charitable contributions fraud, misuse of funds and
charitable contributions fraud. 1 The trial court granted the
Commonwealth's motion to join the trials of Strope and Bell. At
trial, the Commonwealth presented evidence that Strope and Bell
worked together to prepare a script for telemarketers that was
misleading. It also presented evidence that they were in contact
with one another regarding media coverage of incidents of
telemarketer misrepresentations. The jury convicted both men on
the nine counts of charitable contributions fraud and acquitted
both men on the remaining charges.
II. MOTION FOR JOINDER
Code § 19.2-262.1 provides that:
On motion of the Commonwealth, for good cause
shown, the court shall order persons charged
with participating in contemporaneous and
related acts or occurrences or in a series of
1
The trial court sustained the defendants' motions to
strike the conspiracy charges, the attempted embezzlement
charges, and one count of attempted charitable contribution
fraud.
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acts or occurrences constituting an offense
or offenses, to be tried jointly unless such
joint trial would constitute prejudice to a
defendant. If the court finds that a joint
trial would constitute prejudice to a
defendant, the court shall order severance as
to that defendant or provide such other
relief justice requires.
We have recognized that "prejudice may result when evidence
inadmissible against a defendant, if tried alone, is admitted
against a codefendant in a joint trial." Adkins v. Commonwealth,
24 Va. App. 159, 163, 480 S.E.2d 777, 779 (1997). Nevertheless,
"[t]he risk of prejudice will vary with the facts in each case,
and the decision to permit a joint trial is entrusted to the
sound discretion of the trial court." Id. (citations omitted).
On appeal, Strope argues that a joint trial prejudiced him
because (1) it denied his right to compel his codefendant to
testify, (2) his defenses were unfairly entangled with his
codefendant's defenses, (3) the complexity of the case hindered
the jury's ability to distinguish the evidence relevant to each
defendant, (4) he and his codefendant had different degrees of
culpability and (5) he and his codefendant had "antagonistic
defenses." At trial, however, Strope only argued that he would
be prejudiced by a joint trial because (1) evidence concerning
his codefendant would be introduced before a conspiracy was
proven, (2) two codefendants may have "antagonistic defenses"
and (3) it would allow a codefendant's statement to be
improperly admitted if it was made after completion of the
conspiracy. Strope never argued to the trial court that he was
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prejudiced by evidence that was admitted against Bell in their
joint trial but would have been inadmissible against him if
tried alone.
In his reply brief, appellant notes that a document
entitled "Virginia Coalition of Police and Deputy Sheriff's
Script," that was downloaded from an ATI computer drive by the
police and did not include a portion identifying the caller as a
paid solicitor, would have been inadmissible against him if his
trial had not been joined with Bell's and, since it was
prejudicial, the Commonwealth's motion for joinder should have
been denied. At trial, however, Strope objected to this exhibit
on entirely different grounds from those he asserts on appeal.
When the Commonwealth introduced the script, Bell's counsel
stated, "I don't have an objection, but I may have." He
explained that on March 31, 1996, the law changed and unions
were required "to comply with the provisions of the section of
the code of charitable solicitations that dealt with having the
fund raiser identify themselves [sic] as paid fund raisers
[sic]." Since the Commonwealth was "not in a position to prove
the date on that script" and whether it was used before or after
the law change, it would be prejudicial and mislead the jury.
The Commonwealth stated that it was in a position to provide a
date. Strope's counsel then stated that he had "an objection
also" on grounds of relevance since "of all the witnesses who
have testified, none of them have testified to receiving the
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- that this script was read to them." The court allowed the
Commonwealth's witness to identify and authenticate the document
without admitting it into evidence. The next day, the court
admitted the document into evidence as Commonwealth's Exhibit 14
without objection. Accordingly, with respect to this exhibit,
the only ground that is preserved is relevance, and Strope does
not argue this ground on appeal. Pursuant to Rule 5A:18, the
only "prejudice" argument that we may consider on appeal is that
Strope and Bell had "antagonistic defenses."
On appeal Strope must demonstrate that "actual prejudice
would result from a joint trial." Goodson v. Commonwealth, 22
Va. App. 61, 71, 467 S.E.2d 848, 853 (1996) (citation omitted).
"Actual prejudice results only when 'there is a serious risk that
a joint trial would compromise a specific trial right of
[defendant], or prevent the jury from making a reliable judgment
about guilt or innocence.'" Adkins, 24 Va. App. at 163, 480
S.E.2d at 779. "[P]rejudice does not exist merely because a
codefendant has a better chance of acquittal if tried
separately," Barnes v. Commonwealth, 22 Va. App. 406, 412-13, 470
S.E.2d 579, 582 (1996), nor does it exist because codefendants
may have positions that are hostile to one another. See Adkins,
24 Va. App. at 163, 480 S.E.2d at 779; Goodson, 22 Va. App. at
71, 467 S.E.2d at 853. Consequently, the fact that Strope and
Bell may have had "antagonistic defenses" is insufficient alone
to prove actual prejudice.
Furthermore, the assertion of antagonistic defenses is
unsupported in the record of this case. At trial, Strope argued
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to the court and to the jury that the script he and Bell jointly
approved was not misleading and that the individual solicitors
who were tried separately were responsible for any
misrepresentations made to callers. Strope never claimed that
Bell was responsible. Bell presented the same defense. During
closing arguments, both Bell and Strope blamed a few "renegade"
solicitors. Accordingly, the record clearly establishes that
Strope and Bell did not use "antagonistic defenses." The trial
court did not err by joining the trial of Strope and Bell
pursuant to Code § 19.2-262.1.
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III. FREEDOM OF ASSOCIATION CLAIM
Strope maintains that his conviction pursuant to Code
§ 57-57(L) 2 violates his right of freedom of association
protected by the First Amendment to the United States
Constitution. Strope notes that he was found guilty only of
attempting to obtain money by misrepresentation and, according to
Strope, the only evidence supporting that charge was based on his
being associated with VCOPS. As the Executive Director of VCOPS,
Strope was the signatory to the contract with ATI, which,
incidentally, called for honest solicitation. Strope claims that
ATI employees violated the contract by misrepresenting
themselves. Thus, Strope contends that his conviction violates
the First Amendment because it infringes on his freedom of
association.
In support of his contention, Strope cites Riley v. Nat'l
Fed'n of the Blind of North Carolina, 487 U.S. 781 (1988). In
Riley, the United States Supreme Court declared unconstitutional
a North Carolina charitable solicitations statute that defined a
prima facie "reasonable fee" that a professional fundraiser may
charge as a percentage of the funds solicited. Id. at 785-95.
The Court held that the statute violated the First Amendment
since it sometimes required the fundraiser to rebut a prima facie
case that the solicitor's fee was unreasonable. See id. at
793-95.
2
Code § 57-57(L) provides that "No person shall employ in
any solicitation or collection of contributions for a charitable
purpose any device, scheme or artifice to defraud or obtain
money or property by any misrepresentation or misleading
statement." Violation of this chapter is a misdemeanor. See
Code § 57-59.
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Here, in contrast to Riley, there was no prima facie case of
unreasonableness that appellant had to rebut; in other words,
Code § 57-57 does not shift the burden of proof to the
fundraiser. While the jury may have considered the percentage of
the contributions that actually went toward the stated uses for
purposes of determining fraud, Code § 57-57 does not mandate such
a percentage-based inquiry, nor is fraud "presumed by a surrogate
and imprecise formula" within the statute. Id. at 794 n.8.
Quite simply, the jury engaged in a lawful finding of fact by
considering the allocation of the solicited funds to the purposes
stated by the solicitors.
Viewing the evidence in the light most favorable to the
Commonwealth, Strope was found guilty of misrepresentation not
merely because he entered into a contract with ATI and a few
"renegade" ATI solicitors misrepresented who they were and where
the solicited funds would be allocated. Strope intended for
Stafford County to be a target of this telemarketing campaign.
He knew that the solicitors were misrepresenting themselves as
being from the Stafford County Sheriff's Department and that they
had been accused of similar conduct in the past. He participated
in writing the script from which those callers read during the
campaign that misrepresented how the funds were to be allocated.
Furthermore, the evidence established that Strope's telemarketing
campaign resulted in over $322,000 in donations. Of this money,
less than 4% was distributed to the purported charitable causes.
IV. CONCLUSION
We hold that there was no violation of Strope's right of
freedom of association under the First Amendment to the United
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States Constitution. For the reasons stated herein, we affirm
Strope's convictions.
Affirmed.
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