Albert Linch Jordan v. Alabama State Bar Association
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2011-2012
_________________________
1091747
_________________________
Albert Linch Jordan
v.
Alabama State Bar Association
Appeal from the Disciplinary Board of the
Alabama State Bar Association
(No. 06-37)
On Rehearing Ex Mero Motu
PER CURIAM.
On December 16, 2011, this Court issued an opinion in
this
case,
and
on
December
19,
2011,
it
issued
an
order
placing this case on rehearing ex mero motu and withdrawing
1091747
the December 16, 2011, opinion.
We now issue the following
opinion.
Albert
Linch
Jordan
appeals
from
an
order
of
the
Disciplinary Board ("the Board") of the Alabama State Bar
Association
Bar") 1
("the
determining
that
Jordan
has
been
convicted of a "serious crime" for purposes of Rule 22(a)(2),
Ala.
R.
Disc.
P.,
which
provides
that
the
Disciplinary
Commission of the Bar shall disbar or suspend a lawyer who has
been
convicted
of
a
"serious
crime."
Specifically,
Rule
22(a)(2) provides: "The Disciplinary Commission shall disbar
or suspend a lawyer ... [i]f the lawyer's conviction for a
'serious crime,' as defined in Rule 8 of these Rules, has
become final ... in any court of record of this state or any
other state, or of the United States, or of a territory of the
United States."
Rule 8(c)(2), Ala. R. Disc. P., defines a
"serious crime" as:
"(A) A felony;
"(B) A lesser crime involving moral turpitude;
"(C) A lesser crime, a necessary element of
which, as determined by the statutory or common-law
1
See Rule 12(f)(1), Ala. R. Disc. P. ("The parties have
a right to appeal an adverse decision of the Disciplinary
Board ... to the Supreme Court of Alabama ....").
2
1091747
definition of such crime, involves interference with
the administration of justice, false swearing,
misrepresentation,
fraud,
extortion,
misappropriation, or theft; or
"(D)
An
attempt,
a
conspiracy,
solicitation of another to commit a
crime.'"
or
the
'serious
Jordan seeks a reversal of the Board's determination.
We
reverse and remand.
Facts and Procedural History
The present proceeding originates from a long-running
dispute related to an election contest challenging the 1998
election of the Jefferson County sheriff.
v. Hale, 752 So. 2d 1113 (Ala. 1999).
out
the
uncontroverted
material
See, e.g., Eubanks
The Board's order sets
facts
and
the
procedural
history of this matter as follows:
"Mr. Jordan was retained by Jimmy Woodward, at
the time the Sheriff of Jefferson County, Alabama,
to contest the results of the 1998 General Election.
The basis for the contest was Sheriff Woodward's
belief that felons not eligible to vote in fact
voted by absentee ballot.
"As a result of Mr. Jordan's representation of
Sheriff Woodward, an indictment was returned in the
United States District Court for the Northern
District of Alabama alleging that both Mr. Jordan
and Sheriff Woodward utilized employees of the
Sheriff's office to access the National Crime
Information
Center
database
(NCIC),
thereby
obtaining criminal records of certain individuals
3
1091747
who voted by absentee ballot in the referenced
election. The indictment charged violation of 18
U.S.C. § 641 and § 371.
"After trial by jury, Mr. Jordan was found
guilty of conspiring to violate and of violating 18
U.S.C. § 641. Mr. Jordan received a sentence of
probation for six (6) months and a Five Hundred
Dollar ($500.00) fine.
"Mr. Jordan appealed the conviction to the
Eleventh Circuit. [2] He asserted that the indictment
should have been dismissed, claiming that it failed
to provide him with the notice necessary to enable
a defense, that the evidence was insufficient to
support his conviction and [that] the District Court
erred by refusing to give certain jury instructions
requested by Mr. Jordan. These arguments were
considered and rejected by the Court resulting in
Mr. Jordan's conviction being affirmed. In affirming
the conviction, the Court noted since the value of
the property converted was less than One Thousand
Dollars ($1,000.00), the conviction was of a Class
A Misdemeanor." 3
(Footnote omitted.)
2
Jordan appealed both the conviction for violating 18
U.S.C. § 641 and the conviction for violating 18 U.S.C. § 371.
The United States Court of Appeals for the Eleventh Circuit
affirmed both convictions. See discussion infra.
3
The federal indictment charged Jordan with felony
offenses because the value of the property converted was
alleged to be in excess of $1,000. At trial, the prosecution
presented evidence indicating that the property was valued in
excess of $1,000. The jury, however, did not make a finding
as to the value of the property, and the prosecution conceded
that the convictions were for misdemeanor offenses.
4
1091747
Following the affirmance of Jordan's convictions by the
United Stated Court of Appeals for the Eleventh Circuit, the
General Counsel of the
Bar, on May 12, 2006, petitioned the
Disciplinary Commission to suspend or disbar Jordan pursuant
to Rule 22(a)(2) on the basis that he had been convicted of a
"serious crime." In his answer to the Bar's petition, Jordan
asserted several defenses and "denie[d] that he [had] been
convicted of any 'serious offense.'"
The matter then went
before the Board for a determination as to whether Jordan had
been convicted of a "serious crime" as that term is defined in
Rule
8(c)(2).
conviction
See
involves
Rule
a
22(a)(2)
serious
crime
("Whether
as
a
defined
lawyer's
in
Rule
8(c)(2)(B), (C), and (D) shall be made by the Disciplinary
Board upon petition by the General Counsel.
Board
may
conduct
determination.").
a
hearing
to
assist
it
The Disciplinary
in
making
this
At the hearing conducted by the Board, the
Bar indicated that it was proceeding against Jordan primarily
pursuant to Rule 8(c)(2)(C) and (D), i.e., on grounds that
Jordan's crimes constituted lesser crimes involving fraud,
misappropriation, and/or theft and conspiracy. Following the
hearing, the Board on September 16, 2010, entered an order
5
1091747
containing
a
unanimous
finding
that
"[t]he
statutory
definition of the conduct prohibited by § 641 clearly requires
the knowing conversion of a thing of value or the receipt,
concealment
or
retention
of
the
same
with
the
intent
to
convert" and that, correspondingly, "Jordan's conviction ...
required
theft
or
misappropriation."
Based
on
that
determination, the Board's order also included the following
conclusions of law:
"1. The subject crimes, i.e., convictions of 18
U.S.C. § 641 and § [371] do not involve moral
turpitude and therefore are not serious crimes as
defined by Rule 8(c)(2)(B).
"2. The conviction of violating 18 U.S.C. § 641
is a serious crime as defined by Rule 8(c)(2)(C).
"3.
The conviction of violating 18 U.S.C. §
[371] is a serious crime as defined by Rule
8(c)(2)(D)."
Jordan timely filed a notice of appeal.
Standard of Review
The
parties
agree
that
the
standard
of
review
applied to Jordan's appeal is a de novo review.
to
be
See Alabama
State Bar v. Tipler, 904 So. 2d 1237, 1240 (Ala. 2004) ("The
Board of Disciplinary Appeals made legal conclusions regarding
Rule
8(c)(2)(C)
and
Rule
22(a)(2),
6
Ala.
R.
Disc.
P.;
1091747
therefore, we review those conclusions de novo.").
See also
Tipler v. Alabama State Bar, 866 So. 2d 1126, 1137 (Ala.
2003).
Discussion
On appeal, Jordan contends that, contrary to the Board's
decision,
crimes."
his
misdemeanor
convictions
are
not
"serious
Additionally, he argues that, as used in Rule 22,
"the term 'serious crime' ... [is] unconstitutionally vague."
Finally,
Jordan
contends
that
the
Board's
decision
was
contrary to "precedents" established in previous disciplinary
proceedings
and,
thus,
that
its
decision
denied
him
due
process of law.
Although the indictment charging Jordan with the offenses
the Board determined to be "serious crimes" is not included in
the record on appeal, the charges were briefly explained by
the United States Court of Appeals for the Eleventh Circuit in
United States v. Jordan, 582 F.3d 1239 (11th Cir. 2009):
"On June 21, 2000, a Northern District of
Alabama grand jury returned an indictment charging
[Jefferson County Sheriff Jimmy] Woodward and
Jordan, in Count One, with conspiring, in violation
of 18 U.S.C. § 371, to violate 18 U.S.C. § 641 by
receiving, retaining, and converting NCIC [National
Crime Information Center] records to their own use.
Count Two charged Woodward with conveying the NCIC
7
1091747
records to Jordan, and Count Three charged Jordan
with receiving them, both acts in violation of §
641."
582 F.3d at 1244 (footnotes omitted; emphasis added).
The
Eleventh
the
Circuit
Court
of
Appeals
then
summarized
pertinent factual underpinnings of the indictment charging
Jordan:
"Count one, alleging a conspiracy to violate 18
U.S.C. § 641, tracked the language of § 641 and
asserted that the defendants required employees of
the Sheriff's office to access the NCIC [National
Crime
Information
Center]
and
ACJIS
[Alabama
Criminal Justice Information System] databases,
obtain printouts of the criminal records of absentee
voters, and then deliver the printouts, which as
property of the United States had a value in excess
of $1,000, to Jordan for use in Woodward's election
contest.
...
The
overt
acts
committed
in
furtherance of the conspiracy included the November
5, 1998 telephone conversation between [Royce]
Fields[, the assistant sheriff,] and Jordan, the
completion of the NCIC searches, the delivery of the
information they disclosed to Jordan, and [a]
meeting with District Attorney Brown .... In Counts
Two and Three, respectively, the indictment alleged
that Woodward conveyed to Jordan and Jordan received
from Woodward a 'thing of value of the United
States, that is, information contained in the NCIC
records.' ..."
582 F.3d at 1246. 4
4
In United States v. Jordan, 316 F.3d 1215 (11th Cir.
2003), in which the Eleventh Circuit Court of Appeals
reinstated the indictment against Woodward and Jordan, which
had been dismissed by the district court, the specific charges
contained in the indictment were explained as follows:
8
1091747
First, we address Jordan's contention that his conviction
for violating 18 U.S.C. § 641 does not constitute a "serious
crime" as that term is defined in Rule 8(c)(2)(C).
"Woodward and Jordan were each charged in three
counts of the indictment. Count One alleged that
both Woodward and Jordan conspired with each other
to knowingly convert to their own use records and
things of value of the United States of a value in
excess of $1,000; to convey, without authority,
records and things of value of the United States of
a value in excess of $1,000; to receive and retain,
with the intent to convert to their own use, records
and things of value of the United States, of a value
in excess of $1,000, knowing them to be converted;
to knowingly engage in misleading conduct towards
others with the intent to influence the testimony of
persons in future official proceedings; and to
defraud the United States, that is, use deceit,
craft, trickery, overreaching and dishonest means to
interfere
with
and
impair
lawful
government
functions, that is, the government's control of the
NCIC records and the information contained therein,
all in violation of 18 U.S.C. § 371.
"Count Two charged that Woodward knowingly and
without authority conveyed to Jordan a thing of
value of the United States (the NCIC records)
knowing that he had no authority to do so, in
violation of 18 U.S.C. §§ 2 & 641.
"Count Three charged that Jordan knowingly
received and retained a thing of value of the United
States (the NCIC records), knowing them to have been
wrongfully converted, with the intent to convert
them to his own use, in violation of 18 U.S.C. §§ 2
& 641."
316 F.3d at 1224 n.7.
9
1091747
This is not the first time this Court has been called
upon to review the issue whether "a crime less than a felony
and
not
involving
moral
turpitude
[may]
be
considered
'serious crime'" as that term is defined in Rule 8.
904 So. 2d at 1239.
a
Tipler,
See also Alabama State Bar v. Quinn, 926
So. 2d 1018 (Ala. 2005).
In Tipler, in which we were also
applying Rule 22(a)(2) and Rule 8(c)(2), we stated "[t]he
dispositive
issue"
in
that
case
as
"whether
Tipler's
conviction ... [was] a 'serious crime' within the meaning of
Rule 8(c)(2)(C)."
904 So. 2d at 1240.
In Tipler, we stated
that, in making its determination whether the crime falls
within the definition of
8(c)(2)(C),
Ala.
R.
Disc.
a
"serious crime" found in Rule
P.,
the
Board
"is
required
consider only the necessary elements of the crime."
2d at 1241.
to
904 So.
We further explained in Tipler that a review of
the plain language of the charging statute will reveal the
necessary elements:
"Rule 8(c)(2)(C) defines a crime as a
'serious crime' if the necessary elements of the statutory
definition
theft']."
of
the
crime
involve
Id. at 1241.
10
['misappropriation,
or
1091747
At the underlying hearing, the Bar argued, as it does on
appeal, that, under the plain language of 18 U.S.C. § 641, the
conversion underlying Jordan's conviction for violating that
statute amounted to "theft" or "misappropriation" of property,
which meets the definition of a "serious crime" for purposes
of Rule 8(c)(2)(C).
As noted above, this Court has previously
determined that neither the Board nor this Court is "free to
examine the degree of 'seriousness' of the crime," but we are,
instead, "required to consider only the necessary elements of
the crime when determining whether the crime falls within the
definition of a 'serious crime' found in Rule 8(c)(2)(C), Ala.
R. Disc. P." Tipler, 904 So. 2d at 1241.
Therefore, because
the elements of the charged offense are determinative of the
issue,
we
move
directly
to
an
analysis
of
the
charging
statute, 18 U.S.C. § 641.
18 U.S.C. § 641 provides:
"Whoever embezzles, steals, purloins, or knowingly
converts to his use or the use of another, or
without authority, sells, conveys or disposes of any
record, voucher, money, or thing of value of the
United States or of any department or agency
thereof, or any property made or being made under
contract for the United States or any department or
agency thereof; or
11
1091747
"Whoever receives, conceals, or retains the same
with intent to convert it to his use or gain,
knowing it to have been embezzled, stolen, purloined
or converted-"Shall be fined under this title or imprisoned not
more than ten years, or both; but if the value of
such property in the aggregate, combining amounts
from all the counts for which the defendant is
convicted in a single case, does not exceed the sum
of $1,000, he shall be fined under this title or
imprisoned not more than one year, or both.
"The word 'value' means face, par, or market value,
or cost price, either wholesale or retail, whichever
is greater."
Manifestly, § 641 describes different scenarios whereby
an individual might be deemed guilty of a violation of the
statute.
Notably, the first paragraph of that section states
that culpable conduct occurs whenever the offender "embezzles,
steals, purloins, or knowingly converts to his use or the use
of another ... any record, voucher, money, or thing of value
of the United States or of any department or agency thereof,"
while the second paragraph is restricted to situations where
an offender "receives, conceals, or retains" such an item
"with intent to convert it to his use or gain, knowing it to
have been embezzled, stolen, purloined or converted."
Thus,
a comparison between paragraph one and paragraph two of § 641
leads readily to the conclusion that paragraph two does not
12
1091747
involve the culpable conduct of actual embezzlement, stealing,
purloining,
culpable
or
converting
conduct
of
but,
rather,
receiving,
involves
concealing,
or
only
the
retaining
property known to have been embezzled, stolen, purloined, or
converted with the intent thereafter to convert it to the
offender's own use or gain.
It is apparent from a reading of Jordan that the Eleventh
Circuit Court of Appeals deemed that Jordan’s conduct and his
resulting
convictions
under
count
one
and
count
three,
respectively, implicated only the following portions of the
first two paragraphs of § 641:
"Whoever ... knowingly converts to his use or the
use of another ... any record ... or thing of value
of the United States or of any department or agency
thereof ...; or
"Whoever receives, conceals, or retains the same
with intent to convert it to his use or gain,
knowing it to have been ... converted."
582 F.3d at 1242 n. 1 (stating that 18 U.S.C. § 641 "states,
in
pertinent
part").
Given
the
abbreviated
version
of
paragraph two provided by the Eleventh Circuit as being that
portion "pertinent" to Jordan's conviction under count three
for violating § 641, the only issue relevant to his guilt
under
§
641
(count
three)
was
13
whether
he
had
received,
1091747
concealed, or retained the National Crime Information Center
("NCIC") materials "with intent to convert [them] to his use
or gain, knowing [them] to have been ... converted." 5
Although the record does not contain the jury's verdict
returned against Jordan in the United States District Court,
the resulting judgment entered by the district court on the
jury's verdict reflects that Jordan was adjudged guilty of
"Receiving a Thing of Value of the United States (Wrongfully
Converted NCIC Records) with the Intent to Convert to His Own
Use" in violation of § 641, as charged in count three of the
indictment. Similarly, the petition instituting the underlying
disciplinary proceeding against Jordan asserted, with respect
5
We note the vagueness of the Eleventh Circuit's
identification of the pertinent portions of the applicable
statute in that that Court does not state, with particularity,
that only a single one of the paragraphs identified as
pertinent to the appeal applies to Jordan. This may be
explained by the fact that the Court was often discussing the
charges against Jordan and Woodward collectively. Similarly,
as reflected by Jordan's brief to this Court, in which he
purports to appeal from a self-styled "conversion" conviction,
and by the Bar's own apparent understanding of Jordan's
conviction, there appears to be some confusion as to whether
Jordan was convicted of generally violating § 641 or of
specifically violating only paragraph two of that section.
However, upon careful review of the limited materials before
us, we conclude that, from all appearances, Jordan was, in
fact, charged only with violating paragraph two, i.e., with
receiving or retaining the converted materials.
14
1091747
to Jordan’s conviction under count three, that the conviction
constitutes a "conviction of Receiving a Thing of Value of the
United States (Wrongfully Converted NCIC Records) with the
Intent to Convert to His Own Use."
As noted, paragraph two of § 641 –- the portion of the
statute apparently underpinning the charge against Jordan in,
and
his
conviction
under,
count
three
–-
authorizes
the
conviction of one who "receives, conceals, or retains [in this
case, the NCIC records,] with intent to convert [them] to his
use or gain, knowing [them] to have been embezzled, stolen,
purloined or converted."
Thus, Jordan's conviction under
count three appears to have been based on his receiving the
NCIC records with the intent to convert them, not his actual
subsequent "use" or "conver[sion]" of them. 6
6
The Bar argues in its brief that Jordan "was found guilty
of receiving a thing of value and converting it to his own
use." (Bar's brief, at p. 16.)
A defendant's actual
conversion of property to his own use is not a necessary
element of the offense in paragraph two in § 641 –- the
portion of the statute on which Jordan’s count-three
conviction was based -- and nowhere else in the record is
there a formal finding with respect to count three that Jordan
was guilty of "converting" the NCIC records to his own use.
We do not, however, hold that Jordan's conduct would not
sustain a finding of a conversion. In fact, we note that, in
rejecting Jordan's challenge to the sufficiency of the
evidence sustaining his conviction, the Eleventh Circuit
15
1091747
Therefore, as best we are able to discern from Jordan and
from
the
attachments
to
the
petition
instituting
the
underlying disciplinary proceeding, the elements necessary to
Jordan's conviction
include
as
"a
"misappropriation." 7
under paragraph two of § 641 did not
necessary
element"
theft
or
Thus, applying Tipler, we are unable to
conclude, as Rule 8(c)(2)(C) requires, that the statutory
definition of the crime of which Jordan was convicted under
count
three,
predicated,
as
it
apparently
was,
solely
on
paragraph two of § 641, involved as "a necessary element" the
conduct of "misappropriation"; we are unable to conclude,
therefore, that Jordan's conviction under paragraph two of §
specifically found that the evidence established that "Jordan
subsequently used some of the information the printouts
disclosed to prosecute Woodward's election contest." Jordan,
582 F.3d at 1247.
7
We
note,
however,
that
had
Jordan’s
count-three
conviction been based, instead, on paragraph one of § 641, an
alternative necessary element of the crime would have involved
conversion, which we would have no trouble equating to
"misappropriation."
Similarly, had Jordan's count-three
conviction been based on one or more of the other three forms
of
wrongful
conduct
addressed
by
paragraph
one
–"embezzle[ment], steal[ing], or purloin[ment]" –- then a
"serious crime" would have been established under Rule
8(c)(2)(C) not only as to "misappropriation" but also as to
"theft."
16
1091747
641 was a conviction for a "serious crime" as that term is
defined in Rule 8(c)(2)(C).
Jordan further contends that his conviction for violating
18 U.S.C. § 371,8 as charged in count one, does not constitute
a "serious crime" as defined in Rule 8(c)(2)(D).
Jordan
was
convicted of conspiring with Woodward to violate 18 U.S.C. §
641 "by receiving, retaining, and converting NCIC records to
their own use."
582 F.3d at 1244.
At the hearing before the
Board, the Bar contended that, considering the plain language
of 18 U.S.C. § 371, Jordan's conviction under that statute was
a conviction for crimes involving both theft and conspiracy
for purposes of Rule 8(c)(2)(D).
8
Section 371 states:
"If two or more persons conspire either to commit
any offense against the United States, or to defraud
the United States, or any agency thereof in any
manner or for any purpose, and one or more of such
persons do any act to effect the object of the
conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.
"If, however, the offense, the commission of which
is the object of the conspiracy, is a misdemeanor
only, the punishment for such conspiracy shall not
exceed the maximum punishment provided for such
misdemeanor."
17
1091747
Rule
attempt,
8(c)(2)(D)
a
defines
conspiracy,
or
commit a 'serious crime.'"
a
the
"serious
crime"
solicitation
of
as
"[a]n
another
to
The Bar contends that a Tipler
analysis is proper for a determination under Rule 8(c)(2)(D);
i.e.,
according
to
the
Bar,
whether
conspiracy with another to commit
a
a
conviction
for
"serious crime" is a
"serious crime" as defined in Rule 8(c)(2)(D) rests solely on
an examination of the necessary elements of the crime.
Our
analysis in Tipler, however, addressed the definition of a
"serious crime" as defined in Rule 8(c)(2)(C), and we decline
to extend Tipler to a determination of the question under
Rule 8(c)(2)(D).
When considering whether a conviction for conspiracy to
commit a "serious crime" is a "serious crime" as defined in
Rule 8(c)(2)(D), the analysis must include, in addition to an
examination of the elements of the offense, consideration of
the facts supporting and the circumstances surrounding the
conspiracy conviction.
"Decades ago the eminent jurist Learned Hand
referred to conspiracy as '[the] darling of the
modern prosecutor's nursery.'
Harrison v. United
States, 7 F.2d 259, 263 (2d Cir. 1925).
The
validity of that observation has not diminished.
See, e.g., United States v. Stoner, 98 F.3d 527, 533
18
1091747
(10th Cir. 1996)('It is clear that a conspiracy
charge
gives
the
prosecution
certain
unique
advantages and that one who must defend against such
a charge bears a particularly heavy burden.')."
United States v. Henderson, 794 F. Supp. 2d 1236, 1237 (N.D.
Okla. 2011).
In
Krulewitch v. United States, 336 U.S. 440,
445-47 (1949), Justice Jackson in his special concurrence
described the offense of conspiracy as "elastic, sprawling and
pervasive."
He further opined:
"[The] history [of the federal law of conspiracy]
exemplifies the 'tendency of a principle to expand
itself to the limit of its logic.' The unavailing
protest of courts against the growing habit to
indict for conspiracy in lieu of prosecuting for the
substantive offense itself, or in addition thereto,
suggests that loose practice as to this offense
constitutes a serious threat to fairness in our
administration of justice.
"The modern crime of conspiracy is so vague that
it almost defies definition.
Despite certain
elementary and
essential elements, it also,
chameleon-like, takes on a special coloration from
each of the many independent offenses on which it
may be overlaid. It is always 'predominantly mental
in composition' because it consists primarily of a
meeting of minds and an intent.
"....
"... It is not intended to question that the
basic conspiracy principle has some place in modern
criminal law ....
However, ... the looseness and
pliability of the doctrine present inherent dangers
which should be in the background of judicial
19
1091747
thought wherever it is sought to extend the doctrine
to meet the exigencies of a particular case.
"Conspiracy in federal law aggravates the degree
of crime over that of unconcerted offending. ...
"Thus
persons on
guilty of
accessory,
which is a
the conspiracy doctrine will incriminate
the fringe of offending who would not be
aiding and abetting or of becoming an
for those charges only lie when an act
crime has actually been committed. ...
"....
"A recent tendency has appeared in this Court to
expand this elastic offense and to facilitate its
proof. In Pinkerton v. United States, 328 U.S. 640
[(1946)], it sustained a conviction of a substantive
crime where there was no proof of participation in
or knowledge of it, upon the novel and dubious
theory that conspiracy is equivalent in law to
aiding and abetting.
"....
"Of course, it is for prosecutors rather than
courts to determine when to use a scatter gun to
bring down the defendant, but there are procedural
advantages from using it which add to the danger of
unguarded extension of the concept.
"....
"The trial of a conspiracy charge doubtless
imposes a heavy burden on the prosecution, but it is
an
especially
difficult
situation
for
the
defendant."
336 U.S. at 445-51 (footnotes omitted).
See also 2 Wayne R.
LaFave, Substantive Criminal Law § 12.1(b), at 256 (2d ed.
20
1091747
2003)("[I]t
is
clear
that
a
conspiracy
charge
gives
the
prosecution certain unique advantages and that one who must
defend
against
such
a
charge
bears
a
particularly
heavy
burden.").
As the foregoing recognizes, the broadness, elasticity,
and
pliability
of
the
offense
of
conspiracy
provide
the
prosecution with unique advantages not present when charging
and prosecuting other offenses and place an unusually heavy
burden on the defendant.
attorney-disciplinary
To assure fairness and equity in an
proceeding,
specifically
when
the
determination is whether a conspiracy conviction constitutes
a "serious crime" as defined in Rule 8(c)(2)(D), the analysis
must include not only consideration of the elements of the
conspiracy
offense,
but
also
consideration
of
the
facts
supporting and the circumstances surrounding the conviction.
Examination of both the elements and these factors does not
diminish the legitimacy of the conspiracy conviction, but it
guarantees
fairness
proceedings
when
and
equity
determining
in
whether
attorney-discipline
a
conviction
for
an
offense that is so broad, loose, and pliable constitutes a
"serious crime."
See Florida Bar v. Cox, 794 So. 2d 1278,
21
1091747
1286 (Fla.
2001)("[L]awyer discipline must protect the public
from unethical conduct but at the same time not deny the
public the services of a qualified attorney."
Bar v. Pahules, 233
(citing Florida
So. 2d 130, 132 (Fla. 1970)(emphasis
added))).
Here, in reaching its finding that Jordan's conviction
for violating 18 U.S.C. § 371 constituted a "serious crime" as
that term is defined in Rule 8(c)(2)(D), the Board limited its
analysis to the necessary elements of the offense.
Therefore,
we
conspiracy
reverse
the
Board's
finding
that
Jordan's
conviction is a "serious crime" as that term is defined in
Rule
8(c)(2)(D),
and
we
remand
the
case
for
further
proceedings consistent with the foregoing.
As to Jordan's remaining issues on appeal, this Court
finds them to be without merit, to be unpreserved, 9 or to be
unsupported by citation to legal authority as required by Rule
28(a)(10), Ala. R. App. P.
9
See Alabama State Bar v. Hallett, 26 So. 3d 1127, 1140
(Ala. 2009), and Kyser v. Harrison, 908 So. 2d 914, 918 (Ala.
2005).
22
1091747
Conclusion
The
Board's
finding
that
Jordan's
conviction
for
violating 18 U.S.C. § 641 constituted a "serious crime" as
defined by Rule 8(c)(2)(C) is reversed; the Board's finding
that
Jordan's
conviction
for
violating
18
U.S.C.
§
371
constituted a "serious crime" as defined by Rule 8(c)(2)(D) is
also
reversed;
and
this
case
is
remanded
for
proceedings
consistent with this opinion.
ON REHEARING EX MERO MOTU: REVERSED AND REMANDED.
Stuart, Parker, and Wise, JJ., and Harwood and Thomas,
Special Justices,* concur.
Shaw and Main, JJ., concur in part and dissent in part.
Malone,
C.J.,
and
Woodall,
Bolin,
and
Murdock,
JJ.,
recuse themselves.
*Retired Associate Justice R. Bernard Harwood, Jr., was
appointed on October 5, 2011, and Court of Civil Appeals Judge
Terri Willingham Thomas was appointed on January 26, 2012, to
serve as Special Justices in regard to this appeal.
23
1091747
SHAW, Justice (concurring in part and dissenting in part).
I concur with that portion of the main opinion holding
that Albert Linch Jordan's conviction under 18 U.S.C. § 641 is
not a "serious crime" as that term is defined by Rule 8, Ala.
R. Disc. P.
I
respectfully
dissent
from
the
portion
of
the
main
opinion holding that a conviction under 18 U.S.C. § 371 for
conspiracy
to
convert
property
might
not,
under
the
circumstances of this case, be a "serious crime." 10
Rule 8(c)(2) defines a "serious crime" as follows:
"(2) A 'serious crime' is defined as:
"(A) A felony;
"(B) A lesser crime involving moral
turpitude;
"(C) A lesser crime, a necessary
element of which, as determined by the
statutory or common-law definition of such
crime, involves interference with the
administration of justice, false swearing,
misrepresentation,
fraud,
extortion,
misappropriation, or theft; or
"(D) An attempt, a conspiracy, or the
solicitation
of
another
to
commit
a
'serious crime.'"
10
The main opinion does not appear to hold that the
conspiracy conviction cannot constitute a "serious crime"
under the rule.
24
1091747
Subsections
(A),
(B),
and
(C)
offer
three
different
definitions of a serious crime; subsection (D) provides that
an attempt, a conspiracy, or the solicitation of another to
commit a "serious crime" is also a "serious crime."
must
refer
to
subsections
(A),
(B),
or
(C)
to
One thus
determine
whether the crime a person attempted to commit, conspired to
commit, or solicited another to commit constitutes a "serious
crime."
Jordan was convicted of conspiring with Sheriff Jimmy
Woodward to "receiv[e], retain[], and convert[] [National
Crime Information Center ('NCIC')] records to their own use."
This conviction under 18 U.S.C. § 371 calls into play Rule
8(c)(2)(D).
It is a "serious crime" under subsection (D) of
Rule 8(c)(2) if the crime the parties conspired to commit-conversion of property–-constitutes a "serious crime" under
subsection (A), (B), or (C) of Rule 8(c)(2).
It is undisputed that subsections (A) and (B) are not in
play; thus, we must determine if "receiving, retaining, and
converting NCIC records" is covered by subsection (C) of Rule
8(c)(2).
The law regarding whether a crime is a "serious
25
1091747
crime" under Rule 8(c)(2)(C) is well established.
As the main
opinion states:
"This is not the first time this Court has been
called upon to review the issue whether 'a crime
less than a felony and not involving moral turpitude
[may] be considered a "serious crime"' as that term
is defined in Rule 8.
[Alabama State Bar v.]
Tipler, 904 So. 2d [1237,] 1239 [(Ala. 2004)]. See
also Alabama State Bar v. Quinn, 926 So. 2d 1018
(Ala. 2005). In Tipler, in which we were also
applying Rule 22(a)(2) and Rule 8(c)(2), we stated
'[t]he dispositive issue' in that case as 'whether
Tipler's conviction ... [was] a "serious crime"
within the meaning of Rule 8(c)(2)(C).' 904 So. 2d
at 1240. In Tipler, we stated that, in making its
determination whether the crime falls within the
definition of a 'serious crime' found in Rule
8(c)(2)(C), Ala. R. Disc. P., the Board 'is required
to consider only the necessary elements of the
crime.' 904 So. 2d at 1241. We further explained
in Tipler that a review of the plain language of the
charging statute will reveal the necessary elements:
'Rule 8(c)(2)(C) defines a crime as a "serious
crime" if the necessary elements of the statutory
definition of the crime involve ["misappropriation,
or theft"].' Id. at 1241."
So. 3d at
.
Thus, the applicable analysis requires
this Court to consider whether there is a conviction for a
conspiracy and, if so, whether the conspiracy is to commit an
offense that falls under the definition of a "serious crime"
found in Rule 8(c)(2)(C).
The main opinion recognizes that, in determining whether
an offense, standing alone, is a "serious crime" for purposes
26
1091747
of Rule 8(c)(2)(C), the analysis in Alabama State
Tipler, 904 So. 2d 1237 (Ala. 2004), controls.
main
opinion
disregards
offense that is the
"serious crime."
Tipler
when
Bar
v.
However, the
analyzing
whether
an
object of a conspiracy constitutes a
The rationale provided in the main opinion
for this approach is that Tipler is applicable only for the
purpose
of
determining
whether
an
offense
constitutes
a
"serious crime" under Rule 8(c)(2)(C) and that this case is
different
8(c)(2)(D).
because
it
involves
an
analysis
under
Rule
I see no distinction: an analysis under Rule
8(c)(2)(C) is part of, and is required by, the analysis under
Rule
8(c)(2)(D).
In
this
case,
the
analysis
under
Rule
8(c)(2)(C) of Jordan's conviction for violating 18 U.S.C. §
371, as stated in Tipler, is compelled under the basic rule of
stare decisis. 11
11
Tipler is not challenged on appeal, and the doctrine of
stare decisis informs this Court's decision to follow it.
Stare decisis "'is the only thing that gives form, and
consistency, and stability to the body of the law.
Its
structural foundations, at least, ought not to be changed
except for the weightiest reasons.'"
Exxon Corp. v.
Department of Conservation & Natural Res., 859 So. 2d 1096,
1102 (Ala. 2002) (quoting Bolden v. Sloss-Sheffield Steel &
Iron Co., 215 Ala. 334, 340, 110 So. 574, 580 (1925)
(Somerville, J., dissenting)). In this case, Tipler is
controlling precedent, and we have not been asked to abandon
it. "Stare decisis commands, at a minimum, a degree of respect
27
1091747
The main opinion, however, goes further and sets forth a
new
analysis
applicable
to
offenses
falling
within
Rule
8(c)(2)(D):
"When considering whether a conviction for
conspiracy to commit a 'serious crime' is a 'serious
crime' as defined in Rule 8(c)(2)(D), the analysis
must include, in addition to an examination of the
elements of the offense, consideration of the facts
supporting and the circumstances surrounding the
conspiracy conviction."
So. 3d at
.
Under this approach, this Court must, for
purposes of an analysis under Rule 8(c)(2)(D), continue to
examine
the
elements
of
the
underlying
offense,
as
Rule
8(c)(2)(C) and Tipler require, but also "consider[] ... the
facts
supporting
conspiracy
and
the
circumstances
conviction." 12
So.
3d
surrounding
at
.
the
Such
a
consideration is contrary to the prohibition in Tipler that
"the
[Board]
is
not
free
to
examine
the
degree
of
'seriousness' of the crime. Rather, it is required to consider
from this Court that makes it disinclined to overrule
controlling precedent when it is not invited to do so." Moore
v. Prudential Residential Servs. Ltd. P'ship, 849 So. 2d 914,
926 (Ala. 2002).
12
The main opinion does not speak to the issue whether the
new analysis would be applicable when reviewing a conviction
for attempting to or soliciting another to commit a serious
offense.
28
1091747
only the necessary elements of the crime when determining
whether the crime falls within the definition of a 'serious
crime' found in Rule 8(c)(2)(C)."
Tipler, 904 So. 2d at
1241. 13
The rationale expressed in the main opinion for this
additional
component
to
the
analysis
finds
no
support
in
precedent or in the text of the rule and appears to be based
on the belief that there is something sinister or unusual
about
the
crime
of
conspiracy.
Specifically,
the
main
opinion, quoting a concurring opinion in a 1949 United States
Supreme Court case, states that the conspiracy doctrine can
"incriminate persons on the fringe of offending" and that
there
exists
dangers"
in
a
the
"looseness
and
prosecution
of
pliability"
conspiracy
and
offenses
"should be in the background of judicial thought,"
13
"inherent
that
So. 3d
Rule 8(c)(2) does not call for a consideration of
mitigating circumstances in determining whether an offense is
a "serious crime." Instead, it calls for a legal determination
based on clearly defined parameters of subsections (A), (B),
(C), and (D) of that rule. Mitigating circumstances are more
appropriately considered in determining punishment, which
determination is separately appealable and has not yet
occurred.
Any mitigating circumstances surrounding the
conspiracy
conviction
and
tending
to
reduce
Jordan's
culpability should be considered at that time; otherwise, the
Court risks conflating the two separate considerations.
29
1091747
at
; however, it does not identify any such concerns in the
present case.
Further, the main opinion suggests that there
is a "habit to indict for conspiracy in lieu of prosecuting
for the substantive offense itself,"
So. 3d at
, but no
such thing occurred in this case: Jordan was convicted of
receiving
the
records
he
was
receive, retain, and convert.
convicted
of
conspiring
to
Thus, none of the perceived
problems the main opinion identifies actually exists in this
case
or
necessitates
the
creation
of
a
new
approach
to
analyzing Rule 8(c)(2)(D).
Moreover, Jordan does not argue to this Court that Rule
8(c)(2)(D) should be modified or that the rationale expressed
in the main opinion should be adopted.
Although in some
situations this Court will affirm a judgment on grounds not
raised
by
the
parties,
"[t]here
is
a
rather
obvious
fundamental difference in upholding the trial court's judgment
and reversing it."
Smith v. Equifax Servs., Inc., 537 So. 2d
463, 465 (Ala. 1988).
This Court does not reverse a judgment
based on an argument that has not been made on appeal.
Yellow
Dog Dev., LLC v. Bibb Cnty., 871 So. 2d 39, 41 (Ala. 2003)
("[T]his Court will not 'reverse a trial court's judgment ...
30
1091747
based on arguments not made to this [C]ourt.'" (quoting Brown
v. Wal-Mart Stores, Inc., 864 So. 2d 1100, 1104 (Ala. Civ.
App. 2002))); Tucker v. Cullman-Jefferson Cntys. Gas Dist.,
864 So. 2d 317, 319 (Ala. 2003) ("'An appeals court will
consider only those issues properly delineated as such, and no
matter
will
be
considered
on
appeal
unless
presented
and
argued in brief.'" (quoting Braxton v. Stewart, 539 So. 2d
284, 286 (Ala. Civ. App. 1988))).
I would follow the plain language of Rule 8(c)(2)(C) and
(D), and I concur with this Court's analysis set out in its
original opinion in this case released on December 16, 2011:
"Section 371 states:
"'If two or more persons conspire either to
commit any offense against the United
States, or to defraud the United States, or
any agency thereof in any manner or for any
purpose, and one or more of such persons do
any act to effect the object of the
conspiracy, each shall be fined under this
title or imprisoned not more than five
years, or both.
"'If, however, the offense, the commission
of which is the object of the conspiracy,
is a misdemeanor only, the punishment for
such conspiracy shall not exceed the
maximum
punishment
provided
for
such
misdemeanor.'
31
1091747
"[T]he Eleventh Circuit Court of Appeals stated in
[United States v. Jordan[, 582 F.3d 1239 (11th Cir.
2009),] that count one of the indictment charged
both Woodward and Jordan with conspiring to violate
18 U.S.C. § 641 'by receiving, retaining, and
converting NCIC records to their own use,' 582 F.3d
at 1244 (emphasis added), and concluded that the
evidence
was
sufficient
to
support
Jordan's
conviction for conspiracy under § 371. 8 Similarly,
the
district
court's
judgment
reflected
that
Jordan's
conviction
under
count
one
of
the
indictment
was
based,
in
pertinent
part,
on
'Conspiracy to Convert to Own Use Records and Things
of Value of the United States ....'
"Rule 8(c)(2)(D) defines a 'serious crime' as
including '[a]n attempt, a conspiracy, or the
solicitation of another to commit a "serious
crime."' Because Jordan was found guilty of, among
other things, conspiring to convert the NCIC
records, and because a conversion of those records
would represent a misappropriation 9 of the same and
therefore constitute a 'serious crime' under Rule
8(c)(2)(C), the conclusion is inescapable that,
under count one, Jordan was convicted of conspiring
to commit a serious crime, which conspiracy in and
of itself would constitute a serious crime under
Rule 8(c)(2)(D). It necessarily follows then that
Jordan's conviction for violating § 371 constitutes
a conviction for a serious crime, because that
conviction is based on Jordan's alleged conspiracy
with Woodward.
_______________
" 8 As with Jordan's § 641 conviction under count
three, the abbreviated recitation of the applicable
portion of the first paragraph of § 371, which
specifically eliminates the 'embezzles, steals, [or]
purloins'
language,
reflects
the
apparent
determination by the Eleventh Circuit (having before
it both the indictment and the record of that
32
1091747
appeal, neither of which are in the appellate record
before this Court) that the conspiracy count, being
dependent on the § 641 offense that Woodward and
Jordan were alleged to have conspired to commit,
included that portion of § 641 criminalizing a
defendant's knowing conversion.
" 9 The definition of 'misappropriation' that the
Bar relied on at the hearing, apparently from an
edition of Black's Law Dictionary predating the 6th
edition, provides as follows:
"'Misappropriation.
The
act
of
misappropriating or turning to a wrong
purpose; wrong appropriation; a term which
does not necessarily mean peculation,
although it may mean that. Term may also
embrace the taking and use of another's
property for sole purpose of capitalizing
unfairly on good will and reputation of
property owner ....'"
I
would
thus
affirm
the
Board's
decision
that
the
conviction for conspiracy was a "serious crime" under Rule 8.
Therefore, as to that portion of the main opinion, I dissent.
Main, J., concurs.
33
1091747
MURDOCK, Justice (statement of recusal).
I
testified
Albert Jordan
as
a
character
witness
on
behalf
of
in the federal proceeding out of which the
present case arises.
I therefore recuse myself.
34
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