          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                        APRIL SESSION, 1997


                                                          FILED
STATE OF TENNESSEE,        )
                                                              July 3, 1997
                           )    No. 02C01-9609-CC-00313
      Appellee             )
                                                          Cecil Crowson, Jr.
                           )    MADISON COUNTY            Appellate C ourt Clerk
vs.                        )
                           )    Hon. FRANKLIN MURCHISON, Judge
ERNEST VICKERS, III,       )
                           )    (One count of false filing
      Appellant            )    with the Commissioner of the
                                Tennessee Department of Commerce
                                and Insurance; five counts of
                                securities fraud; five counts of theft)



For the Appellant:              For the Appellee:

DANIEL D. WARLICK               CHARLES W. BURSON
611 Commerce Street             Attorney General and Reporter
Suite 2712, The Tower
Nashville, TN 37203             ALBERT L. PARTEE, III
                                Senior Counsel
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                DENNIS GARVEY
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0492




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                OPINION



        The appellant, Ernest Vickers, III, was convicted by a Madison County jury of

one count of filing a false document with the Commissioner of the Tennessee

Department of Commerce and Insurance, Tenn. Code Ann. § 48-2-121(c); five counts

of securities fraud, Tenn. Code Ann. § 48-2-121(a); and five counts of theft, Tenn. Code

Ann. § 39-14-103. The eleven judgments of conviction reflect sentences for class C, D,

and E felonies. 1 In this appeal as of right, the appellant contends that:

        I. He was denied his constitutional right to a speedy trial;

        II. His convictions in the instant case are barred by the doctrine of
        collateral estoppel;

        III. The trial court erred by refusing to charge the jury the defense of
        "advice of counsel;” and

        IV. A material variance existed between counts four and five of the
        indictment and the proof at trial.



        After a review of the record, we conclude that the appellant's contentions are

without merit. The judgment of the trial court is affirmed.




                                            I. Background



        Although the appellant does not challenge the sufficiency of evidence, a review

of the history of this case is helpful to our consideration of the issues presented. In

1991, the appellant and his wife, Jacqueline Vickers, were indicted on thirty-four counts

of securities fraud and theft offenses occurring between December 10, 1987, and

September 28, 1990. These charges arose from the appellant's management of an



        1
          The appellant received varying split confinement sentences in each of the convictions,
with all sentences to run concurrently. His effective period of incarceration is 11 months and 29
days in the county jail.

                                                     2
investment company, First National Bancshares Financial Services, Inc. ("Financial

Services").2 The appellant organized Financial Services to permit him to borrow money

from the general public by issuing uninsured certificates of investment or “bancshares

certificates.” The certificates of investment were marketed and sold from an office

located in the appellant's bank, First National Bank of Jackson. The appellant’s

convictions for securities fraud stem from the use of various schemes and devices to

induce prospective investors to purchase certificates of investment from Financial

Services.



        The principle scheme employed by the appellant was the issuance of a

“prospectus” to the investing public which overstated the assets of Financial Services

and generally misrepresented the financial condition of the investment company.

Through his deception, the appellant was able to convince, in particular, the customers

of First National Bank of Jackson, many of whom invested their lifetime savings, to

purchase the Financial Services certificates, which were designed to resemble the

bank-issued certificates of deposit. The appellant then directed the investors' money

into another corporation, First National Bancshares Corporation, a holding company,

from which he was able to provide himself with personal loans totaling approximately

3.3 million dollars. The appellant's fraudulent and deceptive practices were ultimately

discovered. At the request of the Commissioner of Commerce and Insurance, Financial

Services was placed in receivership and a receiver was appointed on September 28,

1990. The receiver testified that the assets of Financial Services consisted of four

vehicles, two of which were in storage, a boat, and a trailer. On this same date, it was

determined that Financial Services owed in excess of 3 million dollars, including 1.8

million owed to its individual investors. The non cash assets, primarily represented by

accounts and notes payable by the appellant and his wife, were essentially worthless.



        2
          The appellant was the sole stockholder of the First National Bank of Jackson, First
National Bancshares Financial Services, and a holding company, First National Bancshares
Corporation.

                                                     3
In 1990, an attempt was made by the appellant to negotiate the sale of First National

Bank of Jackson in order to cover all outstanding certificates of investment in Financial

Services. Efforts to sell the bank proved unsuccessful, the contract for the sale

expiring one day before the State filed receivership action.



        The appellant was also indicted in Henderson County on similar charges of filing

false documents, securities fraud violations, and theft.3 These charges arose from the

sale of Financial Services’ “bancshares certificates” in Henderson County. Similar

schemes were employed to defraud investors in both Henderson and Madison

Counties. The Henderson County charges resulted in an 18 count indictment. A

mistrial was declared as to one count of false filing due to the jury’s inability to reach a

verdict. The jury acquitted the appellant of the remaining 17 counts.



        The chronological history of this case, as relevant to the present appeal, follows:

        12-10-91          Indictment 91-1209 returned by a Madison
                          County Grand Jury charging the appellant with
                          34 counts of securities fraud and theft.

        9-28-92           Indictment 92-927 returned, “superseding” 91-
                          1209, by Madison County Grand Jury charging
                          the appellant with 34 counts of securities fraud
                          and theft.4

        10-5-92           Indictment returned by Henderson County
                          Grand Jury on related charges arising from the
                          appellant's business practices in Henderson County.

        2-1-93            “Superseding” indictment obtained in
                          Henderson County.

        2-11-93           The appellant moved for a speedy trial.

        3-29-93           Henderson County indictment amended, 93-
                          095.


        3
          Also indicted in Henderson County was the appellant’s wife, Jacqueline Vickers, and
W illiam J. Bo one , his ac cou ntan t.

        4
          W e note that both the State and the appellant refer to the later issuing indictments as
“supers eding” indictm ents . The rec ord d oes reflec t that bo th the 199 1 an d 19 92 ind ictm ents
contained 34 c ounts. The record before u s fails to indicate when the 1 991 indictme nts were
actually dismissed.

                                                         4
      3-11-93       Hearing held on motion for speedy trial.

      6-21-93       Motion for speedy trial denied.

      3-3 to 21-94 Henderson County charges tried. The
                   appellant was acquitted of all counts, except
                   for one, which resulted in a mistrial.

      12-15-94      Motion to dismiss Madison County indictment
                    on grounds of double jeopardy and speedy
                    trial.

      2-24-95       Two attorneys from Attorney General's Office
                    appointed special assistant district attorneys to
                    prosecute Madison County case.

      1-3-95        Hearing on motion to dismiss.

      5-11 & 12-95Motion to dismiss Madison County indictment
                  overruled.

      8-8 to 19-95 Trial in Madison County, State proceeded to
                   trial on 11 counts: 6 securities fraud and five
                   theft. Jury returned convictions on all counts.

      9-22-95       Sentencing hearing.

      10-20-95      Motion for new trial.

      4-22-96       Motion for new trial denied.

      11-6-95       Judgments of conviction entered.




                               II. Right to a Speedy Trial



      The appellant first contends that he was denied his constitutional and statutory

right to a speedy trial. See U.S. CONST . amend. VI; TENN. CONST . art. I, sec. 9; Tenn.

Code Ann. § 40-14-101 (1990); Tenn. R. Crim. P. 48. As basis for this contention, the

appellant argues that he was originally indicted in December 1991, for offenses

occurring between December 10, 1987, and September 28, 1990. The appellant's trial

in Madison County began on August 8, 1995, resulting in a lapse of three years and




                                            5
nine months between indictment and trial. He contends that, due to this delay, he

suffered undue prejudice in preparing and presenting his defense. 5



        The speedy trial guarantee of the Sixth Amendment is designed to "minimize the

possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless

substantial, impairment of liberty imposed on an accused while released on bail, and to

shorten the disruption of life caused by arrest and the presence of unresolved criminal

charges." United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502 (1982).

The right to a speedy trial attaches at the time of arrest or indictment, whichever comes

first, and continues until the date of the trial. United States v. Loud Hawk, 474 U.S.

302, 310-312, 106 S.Ct. 648, 653-654 (1986). This right, however, does not apply

during time periods when charges have been dismissed. MacDonald, 456 U.S. at 8-9,

102 S.Ct. at 1502. The appellant correctly argues that he was originally indicted on

December 19, 1991. However, these charges were later dismissed, as they were

“superseded” by a later indictment, 92-927, returned on September 28, 1992. See

supra note 4. Counts 1 through 10, 13 through 16, and 19 through 34, of the

“superseded” indictment allege that “the statute of limitations is tolled from December

19, 1991 until September 28, 1992.” Thus, as to these counts, the appellant’s right to a

speedy trial attached on December 19, 1991, causing a delay of approximately three

years and nine months between the return of the indictment and the trial. However, his

right to a speedy trial for the remaining counts, 11, 12, 17, and 18, did not attach until

September 28, 1992, causing a delay of approximately two years, eleven months.



         When a defendant contends that he was denied his right to a speedy trial, the

reviewing court must conduct a four part balancing test to determine if this right was,

        5
          W e note that the transcript of the hearing on the m otio n fo r speedy trial is not included in
the record for our review. The appellant is required to have prepared an adequate record in order
to allow meaningful review on appeal. Tenn. R. App. P. 24. An appellate court cannot consider
an iss ue w hich is not preserve d in the reco rd for review . State v. Banes, 874 S.W .2d 73 (Tenn.
Ct. Crim. App. 1993). Nonetheless, because the motion for speedy trial, the orders denying the
m otion, and the State's response to the m otion are included in the record, we deem the record
adequate for appellate review.

                                                         6
indeed, abridged. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).

This test includes consideration of (1) the length of the delay; (2) the reasons for the

delay; (3) the defendant's assertion of his right; and (4) the actual prejudice suffered by

the defendant because of the delay. 6 Id.



         The length of the delay between indictment and trial is a threshold factor, and, if

that delay is not presumptively prejudicial, the other factors need not be considered.

Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The delay in the present case was, at most,

three years and nine months. Supra. While the length of delay, in and of itself, does

not constitute a denial of a speedy trial given the complex nature of the charges, a

delay of one year or longer "marks the point at which courts deem the delay

unreasonable enough to trigger the Barker inquiry." Doggett v. United States, 505 U.S.

647, 652, 112 S.Ct. 2686, 2691, note 1 (1992). Thus, the delay in this case requires

further review.



         Next, we inquire as to the reasons for the delay. Possible reasons for the delay

are said to fall within four identifiable categories: (1) intentional delay to gain a tactical

advantage over the defense or delay designed to harass the defendant; (2)

bureaucratic indifference or negligence; (3) delay necessary to the fair and effective

prosecution of the case; and (4) delay caused, or acquiesced in, by the defense. State

v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996).

         A deliberate attempt to delay the trial in order to hamper the defense
         should be weighted heavily against the government. A more neutral
         reason such as negligence or overcrowded courts should be weighted
         less heavily but nevertheless should be considered. . . . Finally, a valid
         reason, such as a missing witness, should serve to justify appropriate
         delay.


Barker, 407 U.S. at 531, 92 S.Ct. at 2192.




         6
        In State v. Bishop, 493 S.W .2d 81 (Tenn. 1973), our supreme court implicitly adopted the
Barker balancing test for purposes of o ur sta te c onstitu tion al and sta tuto ry right to a speedy trial.

                                                         7
       In the present case, the delay arose from the complex nature of the charges and

the need for judicial economy. Specifically, in the June 21, 1993, order denying the

appellant's motion, the trial court determined that "a subsequent indictment, returned in

Henderson County. . .would lead to a shorter trial and be more convenient to try and

was set for trial on August 3, 1993." Furthermore, on May 11, 1995, the trial court

overruled the appellant's motion to dismiss his case for lack of a speedy trial,

acknowledging that:

       . . .[A]lthough there has been a long delay since the indictment was
       returned, the length of the delay under the circumstances is not
       unreasonable and neither defendant has been materially prejudiced. The
       attorneys on both sides have been diligent, but it has been difficult to
       coordinate the scheduling of this case in light of the expected trial. Both
       this judge and the attorneys on all sides have done the best that we could
       with this case and its companion case in Henderson County. The
       companion case took four . . . weeks to try in 1994, causing 30-40 cases
       to be bumped on this judge's docket.


We conclude that the reason for the delay, in the present case, was neutral and valid in

nature and should be weighed less heavily against the State.



       The third prong of the balancing test, the defendant's assertion of his right to a

speedy trial, was initially satisfied by the appellant's motion demanding a speedy trial on

February 11, 1993. The defendant's assertion of this right weighs in favor of his claim.

Wood, 924 S.W.2d at 347 (citing Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93;

Bishop, 493 S.W.2d at 85).



       Our consideration of the remaining factor, whether the defendant was prejudiced

by the delay, focuses upon (1) any undue and oppressive incarceration; (2) the anxiety

accompanying a public accusation; and (3) any impairment of the defendant’s ability to

prepare his defense. State v. Kolb, 755 S.W.2d 472, 475 (Tenn. Crim. App. 1988).

The record does not demonstrate any oppressive pretrial incarceration, as the appellant

was released on bail pending trial. Furthermore, there is no evidence that the appellant

suffered undue anxiety and concern while awaiting trial. However, the most important


                                             8
inquiry remains, i.e., whether the delay impaired the defendant's ability to prepare a

defense.



       The appellant contends that he has been "severely prejudiced by the delay," in

that (1) a key principal witness died prior to trial; (2) the State tried essentially the same

case in Henderson County, thereby, learning the appellant's defense; and (3) the

elapsed time clouded the memory of witnesses. First, we note that the cases in

Henderson and Madison Counties were not the same, in that they involved different

dates, different victims, different transactions, different prospectuses and different

venues. See, infra Section III. Next, as to his claim that the witnesses suffered

memory loss, the appellant urges this court to take judicial notice of the fact that it is

difficult, if not impossible, to remember particulars from simple business transactions

five years after they have transpired. The record shows no loss of memory by the

witnesses. Third, the appellant argues that he suffered extreme prejudice because his

attorney, Stanley Huggins, a material witness, died prior to the trial. The State

responds that Huggins' testimony, even if available, would not have been admissible as

it was not relevant to any issue raised at trial.



       The appellant contends that Stanley Huggins would have testified that he

provided legal advice to the appellant in August 1990, which included the

implementation of a business plan to valuate and sell the principal asset of Financial

Services, i.e., First National Bank of Jackson. The appellant argues that the sale of the

bank presented a viable method of redeeming outstanding investors’ certificates. This

argument, however, demonstrates that Huggins’ testimony would have been irrelevant

in determining whether the appellant had, in fact, filed a false prospectus and then used

that prospectus to fraudulently obtain money from his victims. This proposed testimony

only deals with the failed effort of the appellant to sell an insolvent bank in the hopes of

paying off investors. The defense of "intent to return or repay" money or property has



                                               9
been rejected by the courts of this and other jurisdictions. See Switzer v. State, 378

S.W.2d 760 (Tenn. 1964). See also United States v. Young, 955 F.2d 99 (1st Cir.

1992); United States v. Coin, 753 F.2d 1510, 1511 (9th Cir. 1995); United States v.

Angelos, 763 F.2d 859, 861 (7th Cir. 1985); State v. Joy, 549 A.2d 1033 (Vt. 1988).

Moreover, James G. Simmons, the potential buyer of the appellant's bank, testified at

trial that the sale of the bank collapsed on September 27, 1990, precluding the

possibility of repaying the victims. Thus, we cannot conclude that the appellant

suffered undue prejudice from Huggins' death. This issue is without merit.




                                       III. Collateral Estoppel



        In his next issue, the appellant contends that, because of his acquittal on

seventeen counts in Henderson County, the doctrine of collateral estoppel precluded

criminal prosecution in Madison County. Specifically, he contends that both indictments

alleged that the appellant, through his control of Financial Services, caused the filing of

false prospectuses which resulted in the felonious taking of investors’ savings. The

appellant concedes that the victims in the two counties were not the same, however,

he maintains that the underlying factual basis for all charges arose from a common

course of conduct and a single sequential course of doing business at Financial

Services. The State contends that the appellant has waived this issue because this

ground was not argued in the motion for new trial and because the appellant failed to

waive venue.7




        7
         W e note that, at the hearing on the motion for new trial, the appellant's trial counsel
moved for a new trial upon "the law of the case" doctrine. Although he did not cite authority or
phrase his issue as one of "collateral estoppel," he properly argued the principle of "collateral
estoppel." Accordingly, we elect to address this issue on its merits.



                                                     10
         The collateral estoppel effect attributed to the Double Jeopardy Clause of the

Fifth Amendment may bar a later prosecution for a separate offense "when an issue of

ultimate fact has once been determined by a valid and final judgment." Ashe v.

Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 1194 (1970). "Where a previous

judgment of acquittal was based upon a general verdict, as is usually the case, this

approach requires the court to examine the record of a prior proceeding, taking into

account the pleadings, evidence, charge, and other relevant matter, and conclude

whether a rational jury could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration." Id. 397 U.S. at 444, 90

S.Ct. at 1194. See also State v. Allen, 752 S.W.2d 515, 516 (Tenn. Crim. App. 1988);

State v. Moore, 713 S.W.2d 670, 674 (Tenn. Crim. App. 1985).



         However, an acquittal, in order to bar a subsequent prosecution for an offense,

must occur in the county in which the offense was committed.8 22 C.J.S. Criminal Law

§ 215; See also Tenn Const. art. I, sec IX. Accord State v. Wilson, No. 86-148-III

(Tenn. Crim. App. at Nashville, May 5, 1987). In the present case, the crimes were

committed in two separate venues, Madison and Henderson. No single court had

jurisdiction of the offenses. Thus, the doctrine of collateral estoppel is inapplicable to

this case. Moreover, the burden is on the appellant to prove by clear and convincing

evidence that, in the earlier trial, the court or a jury necessarily decided the issue of fact

which is an element at issue in the present indictment. See United States v. Bailey, 34

F.3d 683, 688 (8th Cir. 1994); see also United States v. Vaughn, 80 F.3d 549, 551

(D.C. Cir. 1996); Jacobs v. Marathon County, 73 F.3d 164, 167-168 (7th Cir. 1996).

The appellant has failed to carry this burden. This issue is without merit.




         8
          "The trial and conviction or acquittal in one county, of one charged with a criminal
offense, is ord inarily no bar to an indictm ent for the sam e offe nse in a different c ounty unless it
appears that the offense was comm itted in the county in which the former trial was had." 22
C.J.S. Criminal Law §215.

                                                        11
                                     IV. "Advice of Counsel"



        The appellant next contends that the trial court erred by refusing to charge the

jury with the defense of "advice of counsel." Specifically, he argues that "where all the

average businessman does is sign off on complex, complicated, legal documents

prepared by licensed CPAs and attorneys, the defense of 'advice of counsel' should be

available to the crime of false filing, absent a showing that the defendant misled or

misrepresented underlying facts to those professionals." The State maintains that the

appellant has waived this issue because trial counsel failed to submit any special

request in writing for a jury instruction as to this defense and because counsel later

voiced no objection to the charge as given by the judge. See Tenn. R. Crim. P. 30.

See also State v. Haynes, 720 S.W.2d 76 (Tenn. Crim. App, 1986). We agree.

Moreover, as the appellant concedes, our supreme court has previously ruled that the

"advice of counsel" defense is not a defense in Tennessee.9 Hunter v. State, 12

S.W.2d 361, 362 (Tenn. 1928); State v. Brewer, 932 S.W.2d 1, 17 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. 1996); State v. Smith, 656 S.W.2d 882, 888-889 (Tenn.

Crim. App. 1983). Accordingly, this issue is without merit.




                                        V. Material Variance



        In his final issue, the appellant contends that the trial court erred by failing to

dismiss counts four and five of the Madison County indictment, charging the appellant

with class C theft and securities fraud involving the victim, Sue Cox, on or about April




        9
          This court is without the authority "to revise, alter, modify, modernize or otherwise
cha nge a com m on law rule create d by the Sup rem e Court." State v. Braden, 867 S.W .2d 750,
759 (T enn. Crim . App. 1993).

                                                   12
18, 1990, because of a material variance between the indictment and the proof

adduced at trial.10



       When the evidence adduced at a trial does not correspond to the elements of

the offense alleged in the charging instrument, there is a variance. State v. Keel, 882

S.W.2d 410, 416 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994). Generally,

the evidence establishes the commission of an offense different from the offense

alleged in the charging instrument. Id. (citations omitted). The variance rule is

predicated upon the theory that an accused cannot be charged with one offense and

convicted of a completely different offense. Id.



       The proof at trial established that, on April 18, 1990, Ms. Cox invested

$21,000.00 in a Financial Services’ bancshares certificate. She then permitted the

certificate to automatically renew on a monthly basis until it matured on August 21,

1990. On this date, Ms. Cox redeemed her original certificate, keeping a portion of the




accrued interest, and reinvested in a new certificate in the amount of $21,334.37.

Thus, the proof establishes two certificates, one issued in April and redeemed in

August, and a second issued in August. The appellant contends that these facts


       10
        Count four of the indictment reads:

       . . . [T]hat on or abo ut the 18th day of April, 1990, in Ma dison Coun ty, . . .
       ERNEST VICKERS did knowingly obtain or exercise control over the personal
       property of Sue Cox, to wit, twenty-one thousand three hundred and thirty four
       and thirty-seven c ents ($21 ,334 .37) d ollars. . . .

       Count five of the indictment reads:

       . . . [T]hat on or about the 18th day of April, 1990, in Madison County, ERNEST
       VIC KE RS, d irectly or ind irectly th rough his agents and em ployees, d id unlawfully
       and willfully make an untrue statement of a material fact or omit to state a
       material fact necessary in order to mak e the statements made to Sue Cox, in light
       of the circumstances under which they were made, not misleading in connection
       with the sale of a security in the total amount of twenty-one thousand three
       hun dred and thirty-four and thirty-seven cents ($21 ,334 .37) d ollars. . . .

                                                     13
support a material variance because the indictment charges the appellant with

exercising control over the victim’s money in April with the intent to deprive, whereas,

the proof revealed that this certificate was redeemed in August. In effect, the appellant

argues that, if any taking occurred, it was in August not April. First, the appellant fails to

establish a claim of material variance. It is immaterial whether the taking occurred in

April or August, both dates being prior to the filing of the indictment. See Tenn. Code

Ann. § 40-13-207 (1990). The appellant was indicted in counts four and five for class C

and E felonies, respectively, and the proof addressed at trial supports these

convictions. Moreover, this issue is waived for failure to cite authority and failure to

properly brief the issue. See Tenn. R. App. P. 27(a)(4) - (a)(7). This issue is without

merit.



                                      VI. Conclusion



         After reviewing the record and the applicable law, we find the appellant's

contentions to be without merit. Accordingly, the judgments of the trial court are

affirmed.




                                             14
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_______________________________
JOSEPH M. TIPTON, Judge



_______________________________
WILLIAM M. BARKER, Judge




                                  15
