Amended June 22, 2016 State of Iowa v. Demetrius S. Rimmer v. Rona Murphy v. Melonicka Thomas ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 13–1397
Filed March 25, 2016
Amended June 22, 2016
STATE OF IOWA,
Appellant,
vs.
DEMETRIUS S. RIMMER,
Appellee.
_______________________________________
STATE OF IOWA,
Appellant,
vs.
RONA MURPHY,
Appellee.
_______________________________________
STATE OF IOWA,
Appellant,
vs.
MELONICKA THOMAS,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Mary E.
Howes, Judge.
Defendants seek further review of the court of appeals decision
that reversed the district court’s ruling dismissing criminal charges
against them for lack of territorial jurisdiction. DECISION OF COURT
2
OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART; CASE REMANDED.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly
Cunningham, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellee Demetrius S. Rimmer.
Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for
appellee Rona Murphy.
Jack E. Dusthimer, Davenport, for appellee Melonicka Thomas.
3
WATERMAN, Justice.
Can criminal defendants avoid prosecution in Iowa if they were
unaware that their scheme was being perpetrated, in part, on persons
located in Iowa? This appeal presents questions of first impression
regarding the State of Iowa’s territorial jurisdiction to prosecute
multistate insurance fraud. The defendants, who live in Wisconsin and
Illinois and had never set foot in Iowa before their extradition here,
allegedly staged an auto accident in Chicago to collect on false insurance
claims. The victim was a Wisconsin insurance company that paid claims
through its Wisconsin bank account. The accident was investigated by
two employees of the insurer’s Davenport, Iowa branch office, who spoke
with the defendants by phone and interviewed one of them in Wisconsin.
The defendants allegedly made false statements during the phone calls
but were unaware that the investigators were in Iowa during that time.
The defendants argue they are not subject to prosecution here. The
district court granted the defendants’ motion to dismiss for lack of
jurisdiction, and the State appealed. We transferred the case to the
court of appeals, which reversed and reinstated the criminal charges.
We granted the defendants’ applications for further review.
For the reasons explained below, we conclude the phone calls
between the defendants located in Wisconsin and Illinois and the victim’s
investigators in Davenport induced payments on false insurance claims,
a detrimental effect in Iowa, which thereby constituted an element of four
out of the five crimes charged. We hold that the defendants’ challenges
to territorial jurisdiction fail as to those four crimes and this prosecution
may proceed on those charges under the criminal jurisdiction statute,
Iowa Code section 803.1 (2011). We affirm the dismissal of a fifth charge
because the State fails to show any defendant submitted a false written
4
statement or certificate in Iowa. Accordingly, we vacate the decision of
the court of appeals, affirm the district court’s dismissal of that charge,
and reverse the decision of the district court that dismissed the other
criminal charges. We remand these cases to allow the criminal
prosecution to proceed on the reinstated charges.
I. Background Facts and Proceedings.
The trial information and minutes of testimony allege these facts,
which we accept as true for purposes of this appeal. 1 The defendants,
Demetrius Rimmer, Rona Murphy, and Melonicka Thomas, participated
in an insurance fraud ring that staged car accidents in Chicago, Illinois.
Murphy and Thomas are Illinois residents, and their vehicles were
registered in Illinois. Rimmer is a Milwaukee, Wisconsin resident, and
his car was registered in Wisconsin. On November 23, 2011, Rimmer
purchased an insurance policy for his Dodge Charger from Viking
Insurance Company of Wisconsin (Viking Insurance). On the night of
January 6, 2012, Rimmer, Murphy, and Thomas staged a three-car
accident at an intersection in Chicago. Rimmer claimed that he
approached a stoplight too fast and his Charger rear-ended Murphy’s
Chevy Trailblazer, causing it to strike Thomas’s BMW X5 as she drove
through the intersection. Rimmer and Murphy went to a Chicago police
station to report the accident, but no officers responded at the scene.
Rimmer called the 1-800 number on the back of his insurance
card. The call was answered by an insurance company employee in
Kentucky. 2 Rimmer admitted the accident was his fault. He was told
1“We accept as true the facts alleged by the State in the trial information and the
minutes of testimony” when reviewing a ruling on a motion to dismiss. State v. Finders,
743 N.W.2d 546, 548 (Iowa 2008).
2The location of the call center that answers the 1-800 number calls was not
provided in the trial information or minutes. Murphy’s trial counsel informed the court
5
that a regional claims representative would contact him. Rimmer’s claim
was assigned to the Davenport office of Sentry Insurance Company
(Sentry), the parent corporation of Viking Insurance. Sentry and Viking
Insurance are incorporated and headquartered in Wisconsin. Sentry’s
claim adjuster, Greg Perren, called each driver from his Davenport office.
Perren interviewed each driver by phone to inquire how the accident
occurred and to obtain information about each vehicle and claimant. All
three drivers claimed their vehicles were damaged in the accident.
Thomas also claimed that she had a whiplash injury. Perren requested
inspections of each vehicle. A Sentry adjuster from its Wisconsin office
inspected and photographed each vehicle’s damage and estimated the
repair costs. The adjuster inspected Murphy’s and Thomas’s vehicles in
Illinois and Rimmer’s in Wisconsin.
As Perren questioned each driver by phone, he found that their
stories diverged. For example, Thomas claimed her BMW was hit while
she was traveling eastbound through the intersection. However, Rimmer
and Murphy stated the Trailblazer hit Thomas’s BMW as it traveled
westbound. Murphy later changed her story to say she hit the BMW
head-on. Murphy also claimed she had a passenger with her, but the
other drivers said Murphy was alone.
Perren also concluded the photographs contradicted their
statements. Murphy and Thomas claimed Rimmer’s Charger was
drivable with minor damage. By contrast, Rimmer reported his car was
towed from the scene to Milwaukee with extensive front-end damage. Yet
Murphy’s Trailblazer had only minor rear-end damage. Thomas’s BMW
_________________________
during the hearing on the motion to dismiss that calls to the 1-800 number are routed
to Paducah, Kentucky.
6
had a cracked front bumper but no damage to either side despite the
conflicting statements it had been struck broadside. And Thomas
initially told Perren that she drove away from the scene but later claimed
her car had been towed to Crestwood, Illinois. Murphy, however, did not
remember any of the vehicles being towed.
Perren authorized $500 to settle Thomas’s personal injury claim.
Viking Insurance’s Wisconsin bank mailed Thomas a check on
January 18. Perren authorized $6805 for damage to Rimmer’s Charger
and $325 for towing reimbursement. The same Wisconsin bank mailed
the checks to Rimmer at his Wisconsin address on January 20. Perren
authorized $3500 for Murphy’s vehicle damage. 3
On January 19, the claim was randomly reviewed for fraud, and
the reviewer referred the claim to Greg Wolf, who worked in Sentry’s
Davenport office. On January 31, Wolf reviewed the paper file and
concluded the case warranted further investigation. Wolf conducted
recorded telephone interviews of each driver and ran searches on each
vehicle’s history. 4 He discovered the drivers had claimed the same
damage with other insurance companies. He followed up by speaking to
the other insurance company representatives and obtaining
documentation regarding those claims.
Wolf recorded his phone calls with each driver between February 2
and February 16. Wolf asked how the accident occurred and requested
information about the damage to each vehicle. The drivers’ answers
3Each check identified the account holder as Viking Insurance Co. of Wisconsin.
4When Wolf searched the Trailblazer’s history, he uncovered a match with an
accident involving an Iowa resident. Two people, including one Iowa resident, received
medical treatment from Palmer Chiropractic in Davenport, Iowa. The State does not
rely on these facts to establish jurisdiction.
7
remained inconsistent, and each driver claimed to not know the other
drivers. Wolf never mentioned Iowa in any of these recorded phone calls.
He gave Murphy a phone number with a 563 area code, but there is no
information that Murphy ever called that number or knew that area code
is for part of eastern Iowa. Rimmer left Wolf a voicemail containing
fraudulent statements. It is unclear what number Rimmer called to
reach the voicemail.
Wolf’s investigation uncovered that the same vehicular damages
claimed in this accident also had been claimed in other accidents
reported under policies with three other insurance companies—Farmers
Insurance, Geico Insurance, and American Family Insurance. Wolf
discovered that Thomas’s BMW had the same mileage in the Farmers
Insurance claim for an alleged accident on December 16, 2011, and the
Sentry claim for the accident on January 6, 2012. Wolf learned that
American Family Insurance had paid for damages in an accident between
Murphy’s Trailblazer and Thomas’s BMW on October 12, 2011. Wolf
obtained photographs of the Trailblazer from Geico Insurance and
Farmers Insurance showing identical damage as reported in the Sentry
claim, even though these other insurance claims were made months
earlier. Further, Murphy’s car was registered under two names, and
Rimmer’s car was insured by two insurance companies under different
Illinois license plate numbers. Wolf estimated the total amount paid for
the fraudulent claims exceeded $50,000.
Wolf tried to meet personally with each defendant. Wolf met
Rimmer in Wisconsin and discussed the accident. Rimmer repeated his
version of the accident and denied committing any crime. Wolf traveled
to Illinois in an attempt to meet with Thomas and Murphy there, but he
was unsuccessful.
8
On April 30, Wolf reported the insurance fraud to Detective Jason
Gillaspie at the Davenport Police Department. Wolf told Gillaspie that
Sentry had paid $7392 for vehicle damage 5 and $325 in towing
reimbursement. On July 18, Detective Gillaspie obtained a warrant for
Rimmer’s arrest. 6 Detective Gillaspie filed a criminal complaint on July
27 and arrest warrants were issued for Thomas and Murphy that day.
All three were arrested in their home states and extradited to Iowa. 7 The
Scott County attorney filed a trial information on May 2, 2013, charging
each defendant with ongoing criminal conduct in violation of Iowa Code
sections 703.1, 703.2, 706A.1, 706A.2, and 706A.4; theft in the second
degree in violation of sections 702.9, 703.1, 703.2, 714.1, and 714.2;
conspiracy to commit a nonforcible felony in violation of sections 703.1,
703.2, 706.1, and 706.3; fraudulent practices in the second degree in
violation of sections 703.1, 703.2, 714.8, and 714.10; and fraudulent
submissions in violation of sections 507E.3, 703.1, and 703.2. The
minutes of testimony identified several witnesses, including Wolf, Perren,
and appraisers from Farmers Insurance, American Family Insurance,
and Geico Insurance. The only Iowa resident identified in the minutes
was Detective Gillaspie. Wolf and Perren are Illinois residents.
All three defendants moved to dismiss for lack of jurisdiction. The
district court conducted a reported hearing on July 29, 2013. Defense
5A bank that had a lien on the vehicle was paid $1590. The trial information
notes a loss of $6806, which is approximately the amount Sentry paid for damage to
Rimmer’s Charger.
6DetectiveGillaspie’s reports indicate that he did not initially issue a warrant for
Rimmer because Rimmer had requested and been given permission from his probation
officer in an unrelated case to travel to Davenport for an interview with Detective
Gillaspie. When Rimmer failed to show up, Detective Gillaspie requested the warrant.
7Murphy contested her extradition in Illinois.
9
counsel emphasized that none of the defendants had ever been to Iowa
before his or her extradition. The defendants also introduced evidence
that Sentry has offices in all fifty states but its registration with the Iowa
Secretary of State is inactive. Murphy’s counsel noted that the State of
Illinois had declined to charge the defendants.
The district court orally granted the defendants’ motions to dismiss
at the hearing. In its written order filed July 31, the district court
explained why it found the State of Iowa lacked territorial jurisdiction:
No evidence was brought forth that the defendants sought
out the state of Iowa to allegedly perpetrate this crime. The
defendants allegedly submitted an insurance claim for a car
accident occurring in the state of Illinois. The insurer was a
Wisconsin insurance company. No evidence of the
defendants’ actions indicate that they intended any contact
with the state of Iowa. Thus, the Court does not find intent
to produce detrimental effects within the state of Iowa.
The Court next examines if the defendants did produce
detrimental effects within the state of Iowa. The prosecution
alleges that the state of Iowa was harmed, because the office
contacted by the defendants was located within the state.
The prosecution claims that, because Sentry has an office in
the state of Iowa and the alleged fraud was perpetrated
through contacts with that office, then Sentry was harmed
within the state of Iowa.
Sentry was harmed by the alleged fraud, through a
loss of monetary funds. The check was paid from a
Wisconsin bank. The evidence showed that Sentry is
headquartered in Stevens Point, Wisconsin. The Court finds
an agency relationship exists between the different satellite
offices, including the Scott County Sentry Office, and the
headquarters of Sentry. As such, Sentry was not harmed in
an individual office within Scott County, Iowa. Instead,
Sentry, the corporate entity was harmed financially, in the
state of Wisconsin. Thus, the Court declines to find any
detrimental effects within the state of Iowa.
Finally, the Court examines if any of the essential
elements of the crime occurred within the state of Iowa. . . .
The prosecution bears the burden to prove that an essential
element of the crime occurred within the state of Iowa. No
testimony has been brought before the Court establishing an
essential element of the crime was committed within the
state of Iowa. No accident occurred within the state. No
10
defendants reside within the state. However, the prosecution
contends that the alleged perpetration of fraud to the Scott
County Sentry office is sufficient to establish essential
elements of the crimes alleged.
The Court finds that the agency relationship dictates
that acts occurring in a satellite office, such as the one in
Scott County, occur in the corporate entity as a whole.
Thus, fraudulent information given to one office is fraudulent
information given to the corporate entity. As such, the Court
finds that no essential element of a crime occurred within
Scott County, Iowa.
The State appealed, and we transferred the case to the court of
appeals. The court of appeals reversed and held the telephone
conversations amounted to conduct within the State of Iowa:
We find a telephone conversation may constitute
conduct within the state even where the defendants (while
located out of state) do not have actual knowledge the other
speaker is located in Iowa. When these defendants decided
to conduct a multi-state conspiracy to defraud an insurance
company, they ran the risk that some of the company’s
employees would be located in another jurisdiction.
Deliberate indifference to the location of the recipients of the
false information does not shield the defendants from the
jurisdiction of Iowa courts. We also find, based on the
specific facts in this case, the defendants could have
reasonably anticipated they would be subject to criminal
prosecution in a state by providing fictitious and fraudulent
information solely by the phone calls in question. Although
none of the defendants were present in Iowa and the victim
insurance company is a Wisconsin entity, as is the bank.
We determine that acts done outside a jurisdiction that are
intended to cause harm and a detrimental effect in the
jurisdiction justify the state’s involvement. Although the
contacts were minimal, we find the contacts were sufficient
for the State to acquire territorial jurisdiction.
The defendants applied for further review, which we granted.
II. Standard of Review.
We review an order granting a motion to dismiss a charge in a trial
information for correction of errors at law. State v. Gonzalez, 718 N.W.2d
304, 307 (Iowa 2006). “We accept the facts alleged by the State in the
trial information and attached minutes as true.” Id. We review rulings
11
on statutory interpretation for correction of errors at law. Id.; see also
State v. Wagner, 596 N.W.2d 83, 85 (Iowa 1999) (reviewing ruling on
interpretation of criminal jurisdiction statute for correction of errors at
law). We review constitutional claims de novo. Gonzalez, 718 N.W.2d at
307.
III. Analysis.
“[S]tate territorial jurisdiction is an essential element of the crime
. . . [that t]he State is required to prove . . . beyond a reasonable doubt.”
State v. Liggins, 524 N.W.2d 181, 184–85 (Iowa 1994). The defendants
contend the State’s exercise of territorial jurisdiction is unconstitutional
and further argue that their alleged crimes are outside the reach of
Iowa’s criminal jurisdiction statute, Iowa Code section 803.1, because
they engaged in no conduct and caused no harm within Iowa. Because
the statute cannot extend the reach of Iowa’s territorial jurisdiction
beyond the state’s constitutional power to prosecute crimes, we first
address the defendants’ constitutional challenges.
We conclude the defendants’ constitutional challenges to territorial
jurisdiction fail regardless of whether they knew they were speaking with
persons located in Iowa. The defendants committed elements of four out
of the five crimes in Iowa by making statements by phone that induced
the Wisconsin insurer’s Davenport, Iowa employee to authorize payments
of false claims. The defendants’ conduct produced results in this state
(deceiving the Iowa employee decision-maker to authorize false
payments) that support statutory jurisdiction under section 803.1, even
though the actual payments were made to nonresidents from the
insurer’s Wisconsin bank account.
A. Overview of Territorial Jurisdiction. We begin our analysis
with an overview of our state’s territorial jurisdiction to prosecute
12
criminal charges. Territorial jurisdiction refers to a state’s power “to
create criminal law, especially with respect to the permissible
geographical scope of penal legislation.” Wagner, 596 N.W.2d at 85
(quoting 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
§ 16.2(a), at 342 (1984)). Territorial jurisdiction is based on each state’s
police power. States have a “historic right and obligation . . . to maintain
peace and order within their” territorial borders. Heath v. Alabama, 474
U.S. 82, 93, 106 S. Ct. 433, 440, 88 L. Ed. 2d 387, 397 (1985) (quoting
Bartkus v. Illinois, 359 U.S. 121, 137, 79 S. Ct. 676, 685, 3 L. Ed. 2d
684, 694 (1959)). The United States Supreme Court has emphasized
that the power of each state to enforce its own laws implicates the state’s
sovereign authority:
A State’s interest in vindicating its sovereign authority
through enforcement of its laws by definition can never be
satisfied by another State’s enforcement of its own laws. . . .
[A] State must be entitled to decide that a prosecution by
another State has not satisfied its legitimate sovereign
interest.
Id.
“It is a generally recognized principle that a statute of one state has
no extraterritorial effect beyond its borders.” Powell v. Khodari-Intergreen
Co., 334 N.W.2d 127, 131 (Iowa 1983). “Traditionally, at least under the
common law, jurisdiction to subject an accused to criminal prosecution
rests in the courts of the state in which the crime was committed.”
Liggins, 524 N.W.2d at 184. Yet, many crimes involve multistate
conduct. “If the commission of an offense spans jurisdictional
boundaries, more than one jurisdiction may prosecute the crime.” State
v. Sumulikoski, 110 A.3d 856, 861 (N.J. 2015). In 1911, Justice
Oliver Wendell Holmes articulated the “effects doctrine” under which
“[a]cts done outside a jurisdiction, but intended to produce and
13
producing detrimental effects within it, [can] justify a State in punishing
the cause of the harm.” Id. (second alteration in original) (quoting
Strassheim v. Daily, 221 U.S. 280, 285, 31 S. Ct. 558, 560, 55 L. Ed.
735, 738 (1911)). “In 1962, the Model Penal Code incorporated these
more expansive interpretations of territorial jurisdiction.” Id. (citing
Model Penal Code § 1.03 & cmt. 1, at 35–37 (Am. Law Inst. 1962)).
A substantial majority of the states today have statutes that
adopt an interpretation of the territorial principle
substantially more expansive than the traditional common
law position[, s]upported by the broad view of the territorial
principle set forth by Justice Holmes in . . . Strassheim v.
Daily . . . .
4 Wayne R. LaFave et al., Criminal Procedure § 16.4(c), at 924 (4th ed.
2015) [hereinafter LaFave] (footnotes omitted).
Territorial jurisdiction is not coextensive with personal jurisdiction
in civil cases. In civil cases, “[a] state’s power to exercise personal
jurisdiction over a nonresident defendant is limited by . . . the Due
Process Clause of the Fourteenth Amendment.” Sioux Pharm, Inc. v.
Summit Nutritionals Int’l, Inc., 859 N.W.2d 182, 188 (Iowa 2015). “The
touchstone of the due-process analysis remains whether the defendant
has sufficient ‘minimum contacts with [the forum state] such that the
maintenance of the suit does not offend “traditional notions of fair play
and substantial justice.” ’ ” Id. (alteration in original) (quoting Ostrem v.
Prideco Secure Loan Fund, LP, 841 N.W.2d 882, 891 (Iowa 2014)). The
contacts must be sufficient such that the defendant may “ ‘reasonably
anticipate being haled into court’ in the forum state.” Id. (quoting
Ostrem, 841 N.W.2d at 891). The civil defendant must act in a manner
to “purposefully avail[] [himself] of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its
14
laws.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475,
105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528, 542 (1985)).
By contrast, in criminal cases, personal jurisdiction—the exercise
of state power over the defendant—merely requires the physical presence
of the defendant and can be accomplished through the defendant’s arrest
and extradition to the forum. See State v. Casuso, 253 N.W.2d 919, 921
(Iowa 1977) (“Once the defendant was brought physically before the
court, the court obtained jurisdiction of his person irrespective of the
manner of his being presented before the court.”); 2 LaFave § 3.1(j), at 56
(noting that “[t]here is nothing in the Constitution that requires a court
to permit a guilty person rightfully convicted to escape justice because he
was brought to trial against his will” unless the “defendant’s presence is
acquired by ‘government conduct of a most shocking and outrageous
character’ ” (footnotes omitted) (first quoting Frisbie v. Collins, 342 U.S.
519, 522, 72 S. Ct. 509, 512, 96 L. Ed. 541, 545–46 (1952); then quoting
United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir. 1975))).
The defendants rely on civil cases to argue Iowa lacks jurisdiction
to prosecute them. Their reliance on civil jurisprudence is misplaced.
Most courts have held the minimum-contacts test for civil personal
jurisdiction does not apply to criminal prosecutions. See, e.g.,
United States v. Perez-Oviedo, 281 F.3d 400, 403 (3d Cir. 2002)
(concluding personal jurisdiction decisions are “inapposite” to criminal
jurisdiction); Hageseth v. Super. Ct., 59 Cal. Rptr. 3d 385, 390 (Ct. App.
2007) (“Unlike civil actions, criminal proceedings cannot take place in
the absence of the defendant, because the confrontation clause of the
Sixth Amendment bars criminal default judgments.”); In re Vasquez, 705
N.E.2d 606, 609 (Mass. 1999) (“The jurisprudence of personal
jurisdiction has no bearing on the question whether a person may be
15
brought to a State and tried there for crimes under that State’s laws.”);
State v. Luv Pharmacy, Inc., 388 A.2d 190, 193–94 (N.H. 1978) (rejecting
applicability of minimum-contacts test in criminal context); State v.
Taylor, 838 S.W.2d 895, 897 (Tex. App. 1992) (“A ‘minimum contacts’
analysis is not applicable to establish jurisdiction in criminal
prosecutions.”); State v. Amoroso, 975 P.2d 505, 508 (Utah Ct. App.
1999) (“The rule is well-settled that civil ‘minimum contacts’ analysis has
no place in determining whether a state may assert criminal personal
jurisdiction over a foreign defendant.”); Rios v. State, 733 P.2d 242, 244
(Wyo. 1987) (“[T]he concept of minimum contacts . . . has no application
to criminal cases.”); In re Najawicz, 52 V.I. 311, 334–35 (2009) (“It has
been consistently held, however, that [the] minimum contacts analysis is
inapposite in criminal cases.”). But see United States v. Klimavicius-
Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998) (applying a nexus
requirement for crimes on the high seas and concluding “[t]he nexus
requirement ... ensures that a United States court will assert
jurisdiction only over a defendant who ‘should reasonably anticipate
being haled into court’ in this country” (quoting World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d
490, 501 (1980))).
Other differences between civil and criminal cases undermine the
usefulness of civil precedents in analyzing territorial jurisdiction. See
Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 36–37 (2010)
(comparing civil and criminal jurisdiction). The State must prove
territorial jurisdiction beyond a reasonable doubt. State v. Serrato, 787
N.W.2d 462, 468 (Iowa 2010). Challenges to territorial jurisdiction,
which go to the power of the court to hear the case, cannot be waived.
21 Am. Jur. 2d Criminal Law § 435 (2008). By contrast, “personal
16
jurisdiction may be established by waiver, consent, or estoppel.” Sioux
Pharm, 859 N.W.2d at 190. Moreover, most civil cases involve disputes
between private citizens, whereas in a criminal case, the prosecutor
represents the State and seeks to prove the defendant violated a criminal
law of the forum. 8 See Robert A. Leflar, Extrastate Enforcement of Penal
and Governmental Claims, 46 Harv. L. Rev. 193, 199 (1932). The concept
of territorial jurisdiction combines jurisdiction and choice of law, which
are separate issues in civil cases. See People v. Betts, 103 P.3d 883, 891
(Cal. 2005). Personal jurisdiction over a civil defendant does not
necessarily dictate that the forum state’s substantive law will govern an
interstate dispute. Gabe’s Constr. Co. v. United Capitol Ins. Co., 539
N.W.2d 144, 146 (Iowa 1995) (holding in civil cases, Iowa generally
applies the law of the forum with “the most significant relationship to the
transaction and the parties” (quoting Restatement (Second) of Conflict of
Laws § 188(1), at 575 (Am. Law Inst. 1971))). By contrast, the state will
always apply Iowa criminal law in prosecutions. See Wagner, 596
N.W.2d at 85 (defining territorial jurisdiction as the power “to create
criminal law, especially with respect to the permissible geographical
scope of penal legislation” (quoting 2 Wayne R. LaFave & Jerold H. Israel,
Criminal Procedure § 16.2(a), at 342 (1984))). “[M]ost states that would
assert jurisdiction in a case that required application of another state’s
8There were significant historical practical problems prosecuting cases in which
the State had no interest, including
(1) [t]he community’s direct responsibility for offenses committed within
its borders . . . , and (2) the origin of the jury as a trial body, it being at
first a group of men deciding cases on the basis of their own knowledge
of the facts and the sense of the community in which the acts occurred,
therefore necessarily drawn from that community.
Robert A. Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46
Harv. L. Rev. 193, 198 (1932) (footnote omitted).
17
civil law would decline jurisdiction in a case that required it to enforce
the penal law of another state.” Model Penal Code and Commentaries
§ 1.03 cmt. 1, at 36 (Am. Law Inst. rev. ed. 1985) [hereinafter Model
Penal Code] (footnotes omitted). Accordingly, our civil jurisprudence
provides relatively little guidance to the determination of territorial
jurisdiction in this criminal proceeding.
Courts have recognized constitutional restraints on state territorial
jurisdiction. See Liggins, 524 N.W.2d at 184 (citing the Sixth
Amendment of the United States Constitution and article V, section 6 of
the Iowa Constitution, which require prosecution in the district where
the crime occurred); Sumulikoski, 110 A.3d at 866 (“The extraterritorial
application of state criminal law is subject to due process analysis. The
essential inquiry . . . is what ‘fundamental fairness’ requires.” (Citations
omitted.)). We focus now on the defendants’ constitutional challenges to
jurisdiction.
B. Whether the Exercise of Territorial Jurisdiction over These
Defendants is Unconstitutional. The defendants argue the exercise of
territorial jurisdiction would violate their Sixth Amendment right to a
jury trial where the crime occurred, as well as their rights under article
V, section 6 of the Iowa Constitution, which provides Iowa district courts
with jurisdiction for “criminal matters arising in their respective
districts.” They also assert such an exercise would violate their due
process rights under the Fourteenth Amendment. 9 The defendants
9In her appellate brief, Thomas argues the due process clause in article I,
section 9 of the Iowa Constitution provides greater limitations on territorial jurisdiction
than the Fourteenth Amendment. No defendant raised the Iowa due process provision
in district court. Thomas’s motion to dismiss did not mention due process, and it
rather relied on the Vicinage Clause. Accordingly, she failed to preserve any claim
under the Iowa due process provision. See State v. Prusha, 874 N.W.2d 627, 631 (Iowa
2016).
18
contend they are not subject to territorial jurisdiction because they never
set foot in Iowa (before their extradition); the alleged crimes were
committed in Illinois and Wisconsin, not Iowa; the only victim is a
Wisconsin insurer that paid claims from its Wisconsin bank account;
and they had no knowledge the insurer’s employees with whom they
dealt by phone were in Davenport. We conclude their constitutional
challenges fail. We address the constitutional provisions separately.
1. Vicinage. In Liggins, we concluded that common law limitations
on state territorial jurisdiction are “preserved to some degree by the
United States and Iowa Constitutions.” 524 N.W.2d at 184. We noted,
“The Sixth Amendment . . . provides the right to trial in ‘the state and
district wherein the crime shall have been committed.’ ” Id. (quoting U.S.
Const. amend. VI). This is known as the Vicinage Clause. See 1 LaFave
§ 2.6(b), at 834. 10 Article V, section 6 of the Iowa Constitution in turn
provides district courts with jurisdiction over “civil and criminal matters
arising in their respective districts.” Liggins, 524 N.W.2d at 184 (quoting
Iowa Const. art. V, § 6). “The provision for trial in the vicinity of the
crime is a safeguard against the unfairness and hardship involved when
an accused is prosecuted in a remote place.” United States v. Cores, 356
U.S. 405, 407, 78 S. Ct. 875, 877, 2 L. Ed. 2d 873, 876 (1958). In United
States v. Cabrales, the United States Supreme Court noted, “Proper
venue in criminal proceedings was a matter of concern to the Nation’s
founders. Their complaints against the King of Great Britain, listed in
the Declaration of Independence, included his transportation of colonists
10LaFave emphasizes that the role of the Vicinage Clause “has not been critical”
to the analysis of territorial jurisdiction because the relevant jurisdictional statutes
“limit their jurisdiction to crimes that were ‘committed’ within the state, as measured by
conduct or consequences occurring within the State.” 1 LaFave § 2.6(b), at 837.
19
‘beyond [the] Seas to be tried.’ ” 524 U.S. 1, 6, 118 S. Ct. 1772, 1775,
141 L. Ed. 2d 1, 7 (1998) (footnote omitted) (quoting The Declaration of
Independence para. 21 (U.S. 1776)). That is a far cry from prosecuting
these defendants from neighboring states in Scott County, which is less
than 200 miles from where they staged the fake accident.
The Sixth Amendment does not defeat territorial jurisdiction here.
The State can show that these crimes occurred in part in Iowa based on
the defendants’ phone calls with the insurer’s Davenport employee,
deceiving him into authorizing payment of false insurance claims. It is
well-settled that when a crime is committed in multiple states, it can be
prosecuted in each state under the Sixth Amendment. See, e.g.,
United States v. Rodriguez-Moreno, 526 U.S. 275, 281, 119 S. Ct. 1239,
1244, 143 L. Ed. 2d 388, 395 (1999) (“[W]here a crime consists of distinct
parts which have different localities the whole may be tried where any
part can be proved to have been done.” (quoting United States v.
Lombardo, 241 U.S. 73, 77, 36 S. Ct. 508, 510, 60 L. Ed. 897, 898
(1916))); United States v. Root, 585 F.3d 145, 156 (3d Cir. 2009) (rejecting
a Sixth Amendment challenge and noting that “Congress has the power
to lay out the elements of a crime to permit prosecution in one or any of
the districts in which the crucial elements are performed” (emphasis
added)); United States v. Ramirez, 420 F.3d 134, 139 (2d Cir. 2005)
(holding under Sixth Amendment that “venue is properly laid in any of
the districts where an essential conduct element of the crime took place”)
(emphasis added); State v. Ross, 646 A.2d 1318, 1333 (Conn. 1994) (“[A]
person who commits a crime partly in one state and partly in another
state may be tried in either state under the sixth amendment of the
United States Constitution.” (quoting Lane v. State, 388 So. 2d 1022,
1028 (Fla. 1980))); see also State v. Willoughby, 892 P.2d 1319, 1332
20
(Ariz. 1995) (en banc) (“A defendant who commits only part of an offense
in Arizona cannot invoke the vicinage clause as a shield from prosecution
in Arizona.”); 4 LaFave § 16.1(e), at 803 (noting that a prosecution can
constitutionally be brought in multiple districts if “the offense was
committed in part in each of the designated venues” and legislation
provides for multiple venues). The defendants do not argue for a
different standard under article V, section 6 of the Iowa Constitution.
Accordingly, we apply the same standard as the Sixth Amendment and
reach the same conclusion to reject the defendants’ vicinage challenge.
See State v. DeWitt, 811 N.W.2d 460, 467–68 (Iowa 2012).
2. Due Process. We agree with the New Jersey Supreme Court that
“[t]he extraterritorial application of state criminal law is subject to due
process analysis” under the Fourteenth Amendment. Sumulikoski, 110
A.3d at 866; see also People v. Gayheart, 776 N.W.2d 330, 344–45 (Mich.
Ct. App. 2009) (“The application of Michigan’s first-degree murder statute
to defendant’s conduct fully comported with the constitutional guarantee
of due process.”); State v. Randle, 647 N.W.2d 324, 329 n.4 (Wis. Ct.
App. 2002) (“Territorial jurisdiction is part of the due process restrictions
on the power of a court to exercise its jurisdiction over a given
individual . . . .”); Model Penal Code, § 1.03 explanatory note, at 35, 10A
U.L.A. 26 (2001) (“[T]he Code proposes broad jurisdictional bases, within
the limits of due process.”); 4 LaFave § 16.4(c) & n.107, at 932 (noting
that territorial jurisdiction “legislation adheres to the territorial principle,
[so] it is held not to violate due process”). We must determine whether
the State’s exercise of jurisdiction over the defendants offends
“fundamental fairness.” Sumulikoski, 110 A.3d at 866 (citing Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 24–25, 101 S. Ct. 2153, 2158, 68
L. Ed. 2d 640, 648 (1981)); see also Model Penal Code § 1.03 cmt. 1, at
21
40 (“[A] state should have jurisdiction over those whose conduct affects
persons in the state or an interest of the state, provided that it is not
unjust under the circumstances to subject the defendant to the laws of
the state.”).
The defendants’ reliance on civil personal jurisdiction
jurisprudence is misplaced. As explained above, the minimum-contacts
test is inapplicable to territorial jurisdiction. The defendants
alternatively urge us to adopt a nexus test followed by the United States
Court of Appeals for the Ninth Circuit. See United States v. Zakharov,
468 F.3d 1171, 1177 (9th Cir. 2006) (“Nexus is a constitutional
requirement analogous to ‘minimum contacts’ in personal jurisdiction
analysis.” (citing Klimavicius-Viloria, 144 F.3d at 1257)). The nexus test
was adopted for federal prosecution of international defendants in foreign
vessels captured on the high seas outside of U.S. territorial waters. Id.
It requires a sufficient connection between the United States and the
defendant’s activities. Id. “Nexus may be established by a showing that
‘an attempted transaction is aimed at causing criminal acts within the
United States’ or that ‘the plan for shipping the [contraband] was likely
to have effects in the United States.’ ” Id. at 1177–78 (quoting
United States v. Medjuck, 156 F.3d 916, 919 (9th Cir. 1998)). The federal
circuits are divided on whether to require such a nexus or rather simply
determine whether the extraterritorial prosecution is fundamentally
unfair. See United States v. Campbell, 798 F. Supp. 2d 293, 306–07
(D.D.C. 2011) (reviewing circuit split). Assuming without deciding that a
nexus test applies to state territorial jurisdiction, we conclude the test is
satisfied here. As we explain below, the defendants’ phone calls with the
insurer’s Davenport employees constitute conduct in Iowa that produced
22
effects here—fraudulently inducing a Davenport employee to authorize
payments of false insurance claims.
The defendants contend that due process precludes their
prosecution in Iowa because they “did not know or have reason to know
[their] conduct was in any way affecting Iowa or implicating Iowa.”
Specifically, the defendants, relying on inapposite civil jurisdiction cases,
argue they were unaware the insurer’s employees with whom they spoke
were located in Davenport. We do not believe their ignorance of that fact
excuses the defendants from prosecution here. As the court of appeals
aptly observed, “the defendants knew or should have known they were
committing a crime . . . in a state, although they may not have known
which state.”
Due process for purposes of territorial jurisdiction is generally
satisfied when the defendant is on notice he or she may be prosecuted
“somewhere.” See, e.g., United States v. Brehm, 691 F.3d 547, 554 (4th
Cir. 2012) (“Fair warning does not require that the defendants
understand that they could be subject to criminal prosecution in the
United States so long as they would reasonably understand that their
conduct was criminal and would subject them to prosecution
somewhere.” (quoting United States v. Al Kassar, 660 F.3d 108, 119 (2d
Cir. 2011)); United States v. Bocachica, 57 F. Supp. 3d 630, 635 (E.D. Va.
2014) (holding prosecution was not inherently unfair “because the
defendant committed the type of crime for which it was reasonable to
expect he would be prosecuted ‘somewhere’ for his clearly illegal
conduct”). In United States v. Ali, the federal court of appeals observed,
What appears to be the animating principle governing the
due process limits of extraterritorial jurisdiction is the idea
that “no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.”
23
The “ultimate question” is whether “application of the statute
to the defendant [would] be arbitrary or fundamentally
unfair.”
718 F.3d 929, 944 (D.C. Cir. 2013) (alteration in original) (citations
omitted) (first quoting Bouie v. City of Columbia, 378 U.S. 347, 351, 84
S. Ct. 1697, 1701, 12 L. Ed. 2d 894, 898 (1964); then quoting
United States v. Juda, 46 F.3d 961, 967 (9th Cir. 1995)). We are not
dealing with prosecution in Iowa for regulatory transgressions based on
conduct that is arguably legal in the defendants’ home states. To the
contrary, the minutes of testimony describe clearly fraudulent conduct
that the defendants knew or should have known was illegal in any state,
and they knew or should have known they could be prosecuted in the
state where the insurer’s employees whom they intentionally deceived
were located. That is, the defendants engaged in “acts that are
malum in se (wrong in themselves) [rather than] merely
malum prohibitum (wrong because prohibited).” See State v. Azneer, 526
N.W.2d 298, 299 (Iowa 1995) (contrasting “statutes that criminalize
conduct that is inherently wrong” with “statutes that criminalize conduct
that, although not inherently wrong, the legislature wishes to outlaw for
some other reason”). Accordingly, we determine Iowa’s exercise of
territorial jurisdiction is neither arbitrary nor fundamentally unfair.
In United States v. Gonzalez, the United States Court of Appeals for
the Eleventh Circuit rejected an analogous due process challenge to
federal territorial jurisdiction. 776 F.2d 931, 938 (11th Cir. 1985).
Gonzalez argued his prosecution violated due process because the
statute only applied in “customs enforcement areas” and the defendant–
seaman would not know when the vessel was in that part of the sea. Id.
In rejecting that challenge, the Gonzalez court concluded that persons
“embarking on voyages with holds laden with illicit narcotics” assumed
24
the risk of detection and prosecution. Id. at 940–41. Similarly, we
conclude that persons engaged in multistate insurance fraud assume the
risk of prosecution wherever those they deceive are located. A contrary
holding would impede the State’s ability to prosecute and deter
multistate insurance fraud schemes perpetrated on persons in Iowa. The
defendants’ due process challenge to territorial jurisdiction fails.
C. Whether the Exercise of Territorial Jurisdiction over These
Defendants Complies with the Criminal Jurisdiction Statute. We
next address whether the defendants’ conduct falls under Iowa’s criminal
jurisdiction statute. The defendants’ crimes were multistate in scope.
The defendants staged an automobile accident in Chicago, provided false
information on repair estimates in Wisconsin and Illinois, and through
phone calls from those states deceived the Wisconsin insurer’s employee
in Davenport, Iowa, to authorize payment on false claims from the
insurer’s Wisconsin bank account. We must decide whether they can be
prosecuted here under Iowa Code section 803.1 despite their ignorance
of the claim adjuster’s Iowa location.
In Liggins, we noted that section 803.1 expands criminal territorial
jurisdiction beyond the reach of the common law. 524 N.W.2d at 184.
Entitled “State criminal jurisdiction,” section 803.1 expressly extends
territorial jurisdiction to prosecute crimes that occur only partly within
our state’s borders. Iowa Code § 803.1; Serrato, 787 N.W.2d at 468.
Section 803.1 is patterned after the Model Penal Code. Wagner, 596
N.W.2d at 86; see Model Penal Code § 1.03, at 33–34, 10A U.L.A. 25–26.
Section 803.1 provides,
1. A person is subject to prosecution in this state for
an offense which the person commits within or outside this
state, by the person’s own conduct or that of another for
which the person is legally accountable, if:
25
a. The offense is committed either wholly or partly
within this state.
....
2. An offense may be committed partly within this
state if conduct which is an element of the offense, or a
result which constitutes an element of the offense, occurs
within this state.
Iowa Code § 803.1.
By its terms, this statute allows territorial jurisdiction if either
“conduct” or a “result” constituting an element of the crime occurs within
Iowa. Id. Therefore, we first examine whether the defendants committed
at least one element of each crime charged by making false statements
over the phone from neighboring states to the insurer’s employee located
in Davenport, Iowa. These statements induced the employee to authorize
payment from the insurer’s Wisconsin bank account. We will then
examine whether the statements occurred “within this state.” Id.
1. Whether the State can establish an element of each crime
charged occurred in Iowa. For purposes of this appeal, we presume the
allegations in the trial information and minutes of testimony are true.
State v. Finders, 743 N.W.2d 546, 548 (Iowa 2008). The State charged
the defendants with committing five different crimes. The trial
information states the defendants “staged fake automobile accidents and
made claims for financial reimbursement from insurance companies,”
including claims to the Sentry representative in Davenport. The Sentry
employee, Perren, authorized payment of “approximately $6,805.00 being
paid out on a false insurance claim.” Payment was authorized for each
defendant. On appeal, the State argues the defendants’ fake claims
submitted to the Davenport office satisfy an element of each crime
charged. We conclude the State’s allegations constitute an element of
four out of the five crimes charged. We address each crime separately.
26
Count 1 of the trial information charged each defendant with
ongoing criminal conduct under Iowa Code sections 706A.1, 706A.2,
706A.4, 703.1, and 703.2. One element the State is required to prove is
an “act . . . committed for financial gain on a continuing basis, that is
punishable as an indictable offense under the laws of the state in which
it occurred and under the laws of this state.” 11 Iowa Code § 706A.1(5)
(defining “specified unlawful activities”); id. § 706A.2(4) (criminalizing
specified unlawful activity”). The defendants’ fraudulent statements to
Perren in Iowa satisfied this element of ongoing criminal conduct.
Count 2 charged each defendant with theft by deception under
Iowa Code sections 714.1, 714.2, 702.9, 703.1, and 703.2. This charge
required the State to prove each defendant “[c]reat[ed] or confirm[ed]
another’s belief or impression as to the existence or nonexistence of a
fact or condition which is false and which the actor does not believe to be
true.” Id. § 702.9(1) (defining deception); see id. § 714.1(3) (defining theft
by deception); see also State v. Williams, 674 N.W.2d 69, 72–73 (Iowa
2004) (describing that element of theft by deception). The defendants’
statements made by phone to Perren in Iowa gave the Sentry employee
the false impression that a real accident occurred. Perren acted on his
11Making false insurance claims is an indictable offense in Iowa, Wisconsin, and
Illinois. 720 Ill. Comp. Stat. 5/17-10.5(a)(1) (2011) (“A person commits insurance fraud
when he or she knowingly . . . attempts to obtain . . . by deception, control over the
property of an insurance company . . . by the making of a false claim . . . on any policy
of insurance issued by an insurance company . . . .”); Iowa Code § 507E.3(2)(a) (“A
person commits a class ‘D’ felony if the person, with the intent to defraud an
insurer, . . . [p]resents . . . any . . . oral statement . . . as part of, or in support of, a
claim for payment . . . pursuant to an insurance policy, knowing that such . . .
statement contains any false information concerning a material fact.”); Wis. Stat.
§ 943.395(1)(a) (2011) (“Whoever, knowing it to be false or fraudulent, does any of the
following may be penalized[:] . . . [p]resents or causes to be presented a false or
fraudulent claim, or any proof in support of such claim, to be paid under any contract
or certificate of insurance . . . .”).
27
false impressions in Davenport by authorizing payment to each
defendant. This satisfied an element of the crime of theft by deception.
Count 3 charged each defendant with conspiracy under Iowa Code
sections 706.1, 706.3, 703.1, and 703.2. A conspiracy requires “an overt
act evidencing a design to accomplish the purpose” of the offense. Iowa
Code § 706.1(3); see State v. Corsi, 686 N.W.2d 215, 218–19 (Iowa 2004)
(listing elements of conspiracy). Here, the overt acts are the defendants’
false statements made to Sentry’s employees that facilitated the
defendants’ commission of theft by deception, fraudulent submissions,
and ongoing criminal conduct. Perren heard the defendants’ false
statements (their overt acts—an element of conspiracy) in Davenport.
Count 5 charged each defendant with fraudulent submissions
under Iowa Code sections 507E.2, 703.1, and 703.2. An element of this
crime is a materially false oral statement made in support of an
insurance claim. See Iowa Code § 507E.3(2)(a) (“A person commits a
class ‘D’ felony if the person, with the intent to defraud an insurer, . . .
[p]resents . . . any . . . oral statement . . . as part of, or in support of, a
claim for payment . . . pursuant to an insurance policy, knowing that
such . . . statement contains any false information concerning a material
fact.”). The defendants made oral statements that they knew were false
by phone to Perren in Davenport, which satisfies that element of the
crime.
Count 4 charged each defendant with fraudulent practices under
Iowa Code sections 714.8(3) and (10), 714.10, 703.1, and 703.2.
However, the minutes are insufficient to show the defendants committed
any element of that crime in Iowa. A fraudulent practice requires proof
the defendant “tender[ed] a false certification under penalty of perjury,
false affidavit, or false certificate . . . in support of a claim for
28
compensation.” Id. § 714.8(3). There is no reference in the minutes of
testimony to any affidavit or certification under penalty of perjury or any
written, signed certificate that defendants submitted to the Davenport
office. Accordingly, territorial jurisdiction for prosecution of Count 4 is
lacking.
In sum, the information and minutes demonstrate that the
defendants’ fraudulent statements made via telephone to Sentry’s
employee satisfy at least one element of Counts 1, 2, 3, and 5. We
therefore proceed to determine whether those statements or the results of
those statements occurred within this state as contemplated by Iowa
Code section 803.1. However, the information and minutes assert no
facts to support the charge in Count 4. The district court’s dismissal of
that charge was proper.
2. Whether the defendants’ telephone calls from their locations in
other states to the Davenport adjuster who authorized payment constitute
conduct or results within this state. We next decide whether defendants’
phone calls from outside Iowa with Sentry’s decision-maker in Davenport
that induced payment of false claims constitute conduct or a result that
“occurs within this state” under section 803.1. A clear majority of courts
in other jurisdictions have held that a defendant’s phone call from
outside the forum state with a victim or accomplice in the forum
supports territorial jurisdiction. We begin by analyzing our own
precedent and then review authorities from other jurisdictions.
We first interpreted section 803.1 in Liggins. The State of Iowa
charged Stanley Liggins with crimes related to the abduction and death
of Jennifer Lewis, age nine. 524 N.W.2d at 183. The victim lived in
Rock Island, Illinois, with her mother and stepfather. Id. The child was
last seen alive buying gum at Mack’s Liquor Store in that city around
29
6:30 p.m. on September 17, 1990. Id. Her charred body was found at 9
p.m. the same evening on an elementary school lot in Davenport, Scott
County, Iowa, across the Mississippi River from Rock Island. Id. A
medical examination revealed that she had been sexually abused before
being strangled to death. Id. Her body was set afire after she was killed.
Id. Liggins was charged with murder in the first degree, willful injury,
sexual abuse in the first degree, kidnapping in the first degree, and
arson. Id. The district court denied his motion to dismiss the charges
for lack of territorial jurisdiction. Id. at 183–84. He was convicted on
every charge except arson. Id. at 184.
On appeal, we concluded the State had jurisdiction to prosecute
Liggins for murder, but not the other crimes. Id. at 185–86. We applied
Iowa Code section 803.1(2), which provides: “If the body of a murder
victim is found within the state, the death is presumed to have occurred
within the state.” Id. at 184. We concluded section 803.1(2) creates a
“permissive, or rebuttable, presumption of state jurisdiction.” Id. at 185.
In a homicide, if the body is discovered and it is not known
where the death occurred, the rebuttable presumption or
inference is necessary. It is rational to infer from proof of the
location of the body that the homicide was committed within
the state in which the body was found.
Id. However, we concluded the rebuttable presumption only applied to
the murder charge because there was no statutory language to extend
that presumption to the other charges. Id. at 185–86. Without any
additional evidence linking the other crimes to the state, we held those
convictions had to be dismissed for lack of jurisdiction. Id.
In State v. Hustead, the court of appeals applied section 803.1 to
affirm the conviction of a Missouri resident for aiding and abetting thefts
committed in Iowa. 538 N.W.2d 867, 869, 871 (Iowa Ct. App. 1995).
30
Hustead, through phone calls, encouraged two Iowans to burglarize
businesses in Iowa and deliver the stolen property to him in Missouri.
Id. at 869. The Hustead court noted section 803.1 “allow[s] . . . Iowa
courts to assume jurisdiction when any element of the crime is
committed within the borders of the state.” Id. at 871. Because the
burglaries were committed by Hustead’s accomplices in Iowa, the court of
appeals concluded Iowa court had territorial jurisdiction even though the
Missouri defendant had never set foot in our state. Id. The court relied
on oft-cited federal precedent to conclude, “Actions which occur outside a
state, but are intended to and do produce detrimental effects within the
state, justify a state in punishing the cause of the harm.” Id. at 871
(citing Strassheim, 221 U.S. at 285, 31 S. Ct. at 560, 55 L. Ed. at 738)).
Our subsequent cases applying section 803.1 focused on an
element-by-element analysis of the crimes. In Wagner, the defendant
being transported to New Mexico from an Iowa prison escaped while in
Texas. 596 N.W.2d at 85. We noted the three elements of escape: “(1)
the defendant is ‘[a] person convicted of a felony’; (2) who ‘intentionally
escapes’; (3) ‘from the custody of any public officer or employee to whom
the person has been entrusted.’ ” Id. at 86 (quoting Iowa Code § 719.4(1)
(1995)). We observed the first element of escape describes a status, not
“conduct” as required under section 803.1(2). Id. Because the defendant
escaped from custody in Texas, not Iowa, we held there was no conduct
in Iowa as required for jurisdiction under section 803.1. Id. at 89. Four
of nine justices dissented, noting the prisoner’s escape “was clearly more
31
an affront to Iowa authority than to Texas authority.” Id. at 89 (Harris,
J., dissenting). 12
In Serrato, we affirmed a conviction for murder and nonconsensual
termination of a pregnancy when the defendant was seen fighting with
the victim in Iowa shortly before her death. 787 N.W.2d at 467–68. Her
body was found in Illinois. Id. at 467. We reiterated that territorial
jurisdiction “is an essential element of every crime” and stated that “the
Due Process Clause of the Fourteenth Amendment of the United States
Constitution requires the State to prove it beyond a reasonable doubt.”
Id. at 468. We noted that “[a] constituent element of a criminal offense
may be either an actus reus element or a mens rea element.” Id. (quoting
State v. Anderson, 695 N.W.2d 731, 747 (Wis. 2005)). We concluded that
“taken as a whole, the circumstantial evidence . . . provide[d] substantial
evidence to support an inference that Serrato engaged in conduct which
manifested malice aforethought to kill [the victim] and terminate the
pregnancy while in the State of Iowa.” Id. at 471.
In the case now before us, the court of appeals, relying on
decisions from other jurisdictions, concluded that “a telephone
conversation may constitute conduct within the state even where the
defendants (while located out of state) do not have actual knowledge the
other speaker is located in Iowa.” We agree. We conclude that section
803.1 provides jurisdiction when conduct or a result that is an element
of the offense occurs in Iowa despite the defendants’ ignorance of the
physical location of the person being deceived. We hold that the
12The dissent relied on the Interstate Corrections Compact. Iowa Code ch. 913
(1995). The year after the Wagner decision, the legislature amended the Code to allow
prosecution in Iowa of offenders who escape from custody in another state while serving
a sentence on an Iowa conviction. 2000 Iowa Acts ch. 1037, § 2 (codified at Iowa Code
§ 719.4(5) (2001)).
32
defendants’ phone calls to a nonresident victim’s employee in Iowa that
deceived him into authorizing payment of a false claim constitute
conduct or a result that occurs in Iowa even if the victim’s payment is
sent from another state.
We likewise find support for our conclusion in the jurisprudence of
other jurisdictions. The majority of decisions from other states applying
equivalent statutes uphold criminal territorial jurisdiction based on an
out-of-state defendant’s telephonic communications with a victim or
accomplice in the forum. See, e.g., Powell v. State, 246 S.W.3d 891, 892–
94 (Ark. Ct. App. 2007) (concluding “the State can show that the conduct
or result that is an element of the offense occurred within Arkansas”
when the defendant in Georgia by phone and email “actively deceived
[the Arkansas victim] into sending him money”); Black v. State, 819
So. 2d 208, 211–12 (Fla. Dist. Ct. App. 2002) (affirming territorial
jurisdiction to prosecute felony securities fraud based on defendant’s
phone calls and faxes into Florida from another jurisdiction); State v.
Meyers, 825 P.2d 1062, 1064–65 (Haw. 1992) (“We hold that for
purposes of establishing criminal jurisdiction, a telephone call
constitutes conduct in the jurisdiction in which the call is received.”);
State v. Woolverton, 159 P.3d 985, 991–93 (Kan. 2007) (“Although [the
defendant] spoke the threat [into his phone] in Missouri, [the victim]
perceived the threat at her home in . . . Kansas. Thus, an act comprising
a[n] . . . element of criminal threat was committed in Kansas.”); Sykes v.
State, 578 N.W.2d 807, 812 (Minn. Ct. App. 1998) (holding that because
the defendant’s threats made by phone from England were received by
victims in Minnesota, “ ‘some part of the charged offense’ was committed
within Minnesota”); State v. Santana, No. WM–14–002, 2015 WL 628344,
at *3–4 (Ohio Ct. App. Feb. 13, 2015) (holding Texas defendant
33
committed felony in Ohio through phone calls with Ohio accomplice to
sell marijuana in Texas for delivery to Ohio); Commonwealth v. Vergilio,
103 A.3d 831, 832–34 (Pa. Super. Ct. 2014) (holding criminal jurisdiction
existed based on out-of-state defendant’s threatening phone calls to in-
state victim); Shappley v. State, 520 S.W.2d 766, 768 (Tex. App. 1974)
(holding the state had jurisdiction to prosecute defendant for offering to
sell unregistered securities by phone from Arizona to a prospective buyer
in Texas because criminal liability attached when the offer was made);
Carrillo v. State, No. 08–04–0018–CR, 2005 WL 1992521, at *1–2 (Tex.
App. Aug. 18, 2005) (holding jurisdiction existed to prosecute threat
made by phone from out of state but received in state because the
“communication occurs both at the location of the caller and the
recipient” (citing Haigood v. State, 814 S.W.2d 262, 263 (Tex. App.
1991)); Hopkinson v. State, 632 P.2d 79, 100 (Wyo. 1981) (holding
Wyoming had jurisdiction to prosecute an accessory to murder based on
his phone calls from California to accomplices in Wyoming “just as surely
as though the [defendant] was standing on Wyoming soil when he
communicated his requests . . . [because t]he telephone transmitted his
presence into this jurisdiction where he could manipulate and play his
local pawns”). Based on these authorities, we conclude these defendants
may be prosecuted in Iowa because they deceived Sentry’s Iowa employee
through phone calls from neighboring states.
However, the defendants argue this case presents a dispositive
distinction. The foregoing decisions involved a victim in the forum state
or a crime committed by accomplices in the forum, as well as a
defendant who knew he or she was communicating with someone in the
forum. Here, the victim is a Wisconsin insurance company, and the
defendants did not know the investigators with whom they spoke by
34
phone were located in Iowa. For those reasons, the defendants argue
they are beyond the reach of Iowa’s criminal jurisdiction statute. We
disagree. Section 803.1 is satisfied when conduct or a result that is an
element of the crime occurs in Iowa; the statute does not require a victim
here. Nor does section 803.1 require proof the defendant knew his or her
criminal communications were with a person in Iowa rather than another
location.
Federal courts have confronted the same issue—determining where
a crime occurred—when adjudicating venue challenges under statutory
language similar to Iowa Code section 803.1. These federal decisions
involving multidistrict crimes are instructive because the federal
government must prosecute “in a district where the offense was
committed.” Fed. R. Crim. P. 18. Continuing offenses that span multiple
venues may be prosecuted “in any district in which such offense was
begun, continued, or completed.” 18 U.S.C. § 3237(a). Compare id., with
Iowa Code § 803.1(1)(a) (extending territorial jurisdiction to prosecute
offenses “committed either wholly or partly within this state”).
“Determining where an offense was committed, however, has often been
a sticky question.” United States v. Angotti, 105 F.3d 539, 542 (9th Cir.
1997).
In Angotti, the United States Court of Appeals for the Ninth Circuit
squarely rejected a similar lack-of-knowledge argument in upholding
venue in a prosecution for false statements despite the defendant’s
ignorance of the location of the bank’s decision-maker he deceived. Id. at
543–44. Antonio Angotti was charged with multiple financial crimes
arising from false statements made on a loan application submitted to a
federally insured lending institution in the Northern District of
California. Id. at 540–41. His application was forwarded to a bank
35
official in the head office in the Central District who approved the loan,
relying on Angotti’s false statements. Id. at 542. Angotti argued that
venue was only proper in the Northern District because the record was
insufficient to prove he knew his application would be acted upon in the
Central District. Id. at 543.
The Ninth Circuit majority disagreed and held venue was proper in
the forum “where the false statement is ultimately received for final
decisionmaking.” Id. at 542. Thus, the Ninth Circuit determined his
crime was committed in part in the venue where the decision-maker was
located. See id. (“We conclude that venue was therefore proper in the
Central District, where the communication reached the audience whom it
was intended to influence, even though some of the criminal conduct
occurred in the Northern District, where the statements were
submitted.”). The Ninth Circuit concluded, “Angotti’s statement was
made for the purpose of influencing the bank official who had the power
to approve his loan. It is irrelevant whether Angotti subjectively knew
the identity or location of that official . . . .” Id. at 543. Similarly, we
conclude it is irrelevant whether the defendants in this case knew the
insurer’s employee Perren was in Iowa; what matters is that the
defendants sought to deceive him into authorizing payment of their false
insurance claims. Because Perren received the defendants’
communications in Davenport, their offenses were committed partly in
Iowa.
The defendants rely on several criminal cases that declined to
exercise territorial jurisdiction when the nonresident defendant spoke by
phone with a person in the forum state. Duncan v. Super. Ct.,
No. D055977, 2010 WL 740272, at *9–12 (Cal. Ct. App. Mar. 4, 2010)
(holding California lacked territorial jurisdiction to prosecute Arizona
36
resident who telephoned California resident to arrange sex crimes in
Phoenix); State v. Palermo, 579 P.2d 718, 719–20 (Kan. 1978) (holding
Kansas lacked jurisdiction to prosecute drug dealer who refused to enter
Kansas but agreed to sell drugs in Missouri to buyers from Kansas
without knowledge the drugs would be resold in Kansas); State v. Dudley,
614 S.E.2d 623, 625–26 (S.C. 2005) (holding South Carolina lacked
jurisdiction to prosecute a Georgia resident who received phone calls
from informant in South Carolina to arrange drug deal in Georgia).
These cases noted the lack of proof the defendant intended to produce a
“detrimental effect” within the forum state. Duncan, 2010 WL 740272, at
*11 (“Thus, there is no evidence that Duncan ‘intended to produce and
produced detrimental effects within [California],’ that he assisted a
person to ‘commit a crime within this state[,]’ or that a crime was
committed in California through ‘means proceeding directly from
[Duncan].’ ” (first and third alterations in original) (citations omitted)
(first quoting Hageseth, 59 Cal. Rptr. 3d at 401; then quoting Cal. Pen.
Code §§ 27(a)(3), 778b (2008); and then quoting Cal. Pen. Code § 778));
Palermo, 579 P.2d at 720 (“[A] state does not have jurisdiction over an
individual for a crime committed within that state when he was located
outside the state, did not intend to commit a crime within the state, and
could not reasonably foresee that his act would cause, aid or abet in the
commission of a crime within that state.”); Dudley, 614 S.E.2d at 626
(“While a defendant need not be physically present in the State in order
to commit a criminal offense here, the State’s extraterritorial jurisdiction
extends only to those who have performed acts ‘intended to produce and
producing detrimental effects within’ our boundaries.” (quoting
Strassheim, 221 U.S. at 285, 31 S. Ct. at 560, 55 L. Ed. at 738)).
However, these decisions are distinguishable. Here, the defendants
37
intended to induce the insurer’s employee to pay false claims—a
detrimental effect that occurs wherever that decision-maker is located.
In People v. Baker, an Illinois appellate court held Illinois had
territorial jurisdiction to prosecute an Ohio resident who made
threatening phone calls to a victim in Illinois. 643 N.E.2d 286, 287 (Ill.
App. Ct. 1994). The Baker court concluded “that the defendant’s conduct
occurred entirely in the State of Ohio.” Id. The court nevertheless
upheld jurisdiction because “the alleged result of that conduct was
harassment in Illinois. Thus, for jurisdictional purposes, the offense was
committed partly in Illinois.” Id. Baker supports prosecution of these
defendants in Iowa because the result of their phone calls was the
authorization by the Davenport employee to pay the false claims.
The defendants also rely in part on decisions from other states that
decline to exercise civil personal jurisdiction based on the nonresident
defendant’s phone calls into the forum. See, e.g., Margoles v. Johns, 483
F.2d 1212, 1213, 1217–21 (D.C. Cir. 1973) (concluding the District of
Columbia lacked personal jurisdiction over a nonresident defendant who
phoned an Illinois congressman at his Washington, D.C. office to slander
a Wisconsin physician); Mimm v. Vanguard Dealer Servs., LLC, No. 11–
736 GMS, 2012 WL 4963315, at *3–4 (D. Del. 2012) (holding Delaware
lacked personal jurisdiction over a nonresident defendant who phoned a
Delaware defendant from New Jersey to induce a breach of contract). As
we explained above, these civil personal jurisdiction decisions are
inapposite to our analysis of territorial jurisdiction for this criminal
prosecution.
The defendants argue, and the district court found, there was no
victim or detrimental effect in Iowa because Sentry is a Wisconsin
insurance company that paid the false claims from its Wisconsin bank
38
account. The State argues, and the court of appeals concluded, that
there was both a result and detrimental effect in Iowa. We conclude the
defendants’ false statements, by inducing Sentry’s Davenport employee
to authorize payments, had a detrimental effect in Iowa constituting a
“result” that is an element of the crimes charged for purposes of section
803.1. See Powell, 246 S.W.3d at 892–94 (concluding “the State can
show that the . . . result that is an element of the offense occurred within
Arkansas” when the defendant in Georgia by phone and email “actively
deceived [the Arkansas victim] into sending him money”). Our
conclusion is supported by federal decisions upholding prosecution for
financial crimes in the forum where the corporate victim’s decision-
maker was deceived. See Angotti, 105 F.3d at 543; United States v.
Candella, 487 F.2d 1223, 1228 (2d Cir. 1973).
We acknowledge that for purposes of civil personal jurisdiction, we
generally consider financial harm to a corporation to occur in the state
where it is headquartered or incorporated. Sioux Pharm, 859 N.W.2d at
197; see also CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1079 (9th Cir. 2011) (“We have repeatedly held that a corporation incurs
economic loss, for jurisdictional purposes, in the forum of its principal
place of business.”); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946
F.2d 1384, 1388–89 (8th Cir. 1991) (holding economic injury in a
trademark-infringement case was suffered in forum where the
corporation had its principal place of business and the offending product
was sold). Sentry is headquartered and incorporated in Wisconsin. This
does not mean the defendants’ contacts with the Davenport employees
are deemed to occur in Wisconsin, as the district court erroneously
concluded. An Iowa victim is not required for territorial jurisdiction
under section 803.1 if conduct or a result that constitutes an element of
39
the crime occurred in this state. It is sufficient that defendants’ false
statements deceived the victim’s employee–decision-maker Perren in
Davenport into authorizing payment of the defendants’ false insurance
claims.
As federal courts have recognized, a prosecution may proceed in
the forum where the victim’s decision-maker is located. Angotti, 105
F.3d at 543; Candella, 487 F.2d at 1228. Iowa’s territorial jurisdiction
over these crimes, grounded in Perren’s decision made in Iowa to pay
false claims, was not defeated by the fact the checks were cut from
Sentry’s Wisconsin bank account, a ministerial act. See United States v.
Bezmalinovic, 962 F. Supp. 435, 439 (S.D.N.Y. 1997) (holding
prosecution for mortgage fraud must proceed in district where fraudulent
application was submitted and bank’s decision-maker was located,
rather than in forum where bank accounts were debited and credited).
In this case, the court of appeals concluded: “We should not bar
the State of Iowa in pursuing its valid interest in protecting its citizens
and institutions. To hold otherwise would be contrary to legitimate state
concerns.” We agree. Our holding is consistent with the legislature’s
intent to enlarge Iowa’s territorial jurisdiction. See Liggins, 524 N.W.2d
at 184 (“Criminal territorial jurisdiction in Iowa is expanded by Iowa
Code section 803.1 . . . .”). The defendants’ narrower interpretation
would allow out-of-state defendants to defraud the Iowa employees of
nonresident corporations through phone calls and avoid prosecution in
this state.
IV. Conclusion.
For the reasons set forth above, we hold the State has territorial
jurisdiction to proceed with this criminal prosecution on four of the five
crimes charged. We vacate the court of appeals decision and affirm the
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district court’s dismissal of Count 4 of the trial information. We reverse
the district court’s ruling that dismissed the other counts. We remand
these cases to allow the prosecution on Counts 1, 2, 3, and 5 to proceed
consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART;
CASE REMANDED.