State v. Hammer

20100025 State of North Dakota, Plaintiff and Appellee
v.
Jay Larry Hammer, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Georgia Dawson
Nature of Action: Misc. Statutory Offense (Felony)
Counsel:
Appellant: Jonathan T. Garaas
Appellee: Cherie LaVonne Clark , Asst. State's Attorney
Amicus curiae: Petra H. Mandigo Hulm , Spec. Asst. Atty. Gen.
Appellee: Reid Alan Brady , Asst. State's Attorney
Term: 06/2010   Argument: 06/24/2010  9:30am
ND cite: 2010 ND 152
NW cite: 787 N.W.2d 716

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Does the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, or Article I,  12, of the North Dakota Constitution, bar the criminal prosecution of Hammer because he had already been subject to the equivalent of criminal punishment by North Dakota Workforce Safety and Insurance?
2. Did the District Court err when it denied Hammer's Motion to Suppress certain bank records, and evidentiary fruits thereof, obtained by a Special Assistant Attorney General's Administrative Subpoena Duces Tecum(s), without prior notice or judicial oversight, for any one of the following reasons:
a. The evidence was unlawfully acquired, without a judicial or administrative search warrant, in violation of the Fourth Amendment to the Constitution of the United States of America, made applicable to North Dakota by the Fourteenth Amendment, and by Article I, Section 8 of the Constitution of North Dakota;
b. The evidence was unlawfully gathered by a Special Assistant Attorney General, without either (1) notice to Hammer, (2) judicial supervision, or (3) warrant, and is fruit of the poisonous tree subject to the exclusionary rule when the Special Assistant Attorney General acts as investigator, lawyer, witness, and prosecutor in violation of Fourth Amendment policies set forth in Coolidge v. New Hampshire, 403 U.S. 443 (1971);
c. The evidence was illegally acquired by a Special Assistant Attorney General by issuing subpoena(s) without following procedures mandated by Chapter 28-32 of the North Dakota Century Code;
d. The discovery rules of the North Dakota Rules of Civil Procedure would not sanction the Special Assistant Attorney General's subpoena(s) because they were issued without notice;
e. The illegally obtained evidence is bank records, and neither Workforce Safety & Insurance, nor the Special Assistant Attorney General complied with the provisions of N.D.C.C.  6-08.1-05;
f. Violating Fourth Amendment principles, the evidence was acquired by an illegal administrative search wherein the agency delved into matters beyond its authority, by broad and indefinite subpoenas, issued without compliance with procedural rules or law?
3. Was Hammer denied Due Process of Law, and the procedural protections of N.D.R.Crim.P. 47, when the District Court authorized the amendment of the Information three days before the scheduled trial?
4. Was Hammer deprived of legal defenses to the criminal prosecution for any one of the following reasons:
a. By the amendment of the Information three days before the scheduled trial thereby depriving/restricting HAMMER of the defense of "mistake of law";
b. By the District Court repudiating or rejecting Hammer's requested jury instructions;
c. By the District Court adopting Title 12.1's definition of "willfully" for the mens rea instead of the definition of "willfully" used in Fettig v. Workforce Safety an Insurance, 2007 ND 23, 728 N.W.2d 301;
d. By the District Court improperly excusing defective status reports that do not contain requisite language notifying injured workers of possible penalties for failure to report any work activities;
e. By the District Court not recognizing that income from the spouse is not material?

Appellee's Statement of the Issues:
I. Whether no double jeopardy violation occurred because the prior administrative action terminating WSI benefits did not constitute a criminal punishment.
II. Whether financial documents were lawfully obtained because WSI used valid administrative subpoenas.
III. Whether the district court acted within its discretion in granting the State's motion to amend the Information to conform to the evidence and, regardless, whether the amendment was harmless because the Defendant was afforded all rights on the Amended Information as if the amended charges had been filed anew.
IV. Whether the district court properly denied the Defendant's proposed jury instructions relating to status reports and the definitions of "receipt of income from work" and "willfully" because such instructions were inconsistent with the law, and, regardless, whether the denial of the Defendant's proposed jury instruction on "willfully" was harmless.

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Docket entries:
101/20/2010 NOTICE OF APPEAL: 01/15/2010
201/20/2010 ORDER FOR TRANSCRIPT: 01/15/2010
302/04/2010 Notice from Jody Fischer that preparation of the transcript is suspended for failure to pay
402/04/2010 Notice from Kristen Erickson that preparation of the transcripts is suspended for failure to pay
502/04/2010 MOT. EXT/TIME APPELLANT BRIEF (sua sponte/no tra. for failure to pay). Granted: 02/24/2010
602/04/2010 ACTION BY CLERK - MAT )Sua Sponte/no pymt for tra. Granted: 02/24/2010
702/12/2010 Copy of letter from Jonathan Garaas ato court reporters RE: payment for transcripts
802/12/2010 ELECTRONIC RECORD ON APPEAL
902/18/2010 Ltr from Jody Fischer stating she received payment for prep of Transcript.
1002/22/2010 TRANSCRIPTS DATED 2/27/09, 4/23/09, 11/12/09, & C.O.S.
1102/23/2010 DISK - TRANSCRIPTS DATED 2/27/09, 4/23/09 & 11/12/09.
1202/25/2010 DISK-TRA 7/15/09, 8/12/09, 10/23/09 & 12/16/09
1302/26/2010 TRANSCRIPTS DATED 7/15/09, 8/12/09, 10/23/09, 12/16/09, & C.O.S.
1404/07/2010 APPELLANT BRIEF
1504/07/2010 APPELLANT APPENDIX
1604/14/2010 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF & BRIEF/SUPPORT(E-FILED)
1704/14/2010 E-FILED MOTION (Mot/Leave/File/Amicus/Brief)
1804/14/2010 ACTION BY CLERK (Mot/Leave/File/Amicus/Brief). Granted
1904/12/2010 DISK - ATB
2005/07/2010 APPELLEE BRIEF (e-filed)
2105/07/2010 E-FILED BRIEF (AEB)
2205/07/2010 AMICUS CURIAE BRIEF (Workforce Safety & Insurance)
2305/07/2010 E-FILED BRIEF (ACB)
2405/10/2010 Received $25 surcharge for ACB (Receipt #19485)
2505/12/2010 Received 7 copies of ACB from CSD
2605/13/2010 Received $25 surcharge for AEB (Receipt #19490)
2705/13/2010 Received 7 copies of AEB from CSD
2805/18/2010 NOTICE OF ORAL ARGUMENT SENT
2905/27/2010 REPLY BRIEF of Appellant
3005/28/2010 DISK - ryb
3106/22/2010 Request for Radio/TV Coverage (Associated Press) approved
3206/22/2010 Supplemental Clerk's Certificate dated 6-22-10 (Entry Nos. 155 and 157-166 (Electronic) NOTE:
3306/22/2010 Entry No. 156 (Exh. A--DVD) is not attached to Odyssey
3406/24/2010 APPEARANCES: Jonathan Garaas/Reid Brady, Asst. State's Attny.
3506/24/2010 ARGUED: Garaas/Brady
3606/24/2010 ORAL ARGUMENT WEBCAST
3708/17/2010 DISPOSITION: AFFIRMED
3808/17/2010 UNANIMOUS OPINION: Kapsner, Carol Ronning
3908/19/2010 Judgment Sent to Parties
4009/17/2010 MANDATE
4109/20/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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