                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0208
                            Filed November 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL E. PIEPER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee County (North), Mark E. Kruse,

District Associate Judge.




      Michael Pieper appeals his conviction of felonious misconduct in office

following a jury trial, challenging the sufficiency of the evidence. REVERSED

AND REMANDED.




      Matthew G. Whitaker and Kendra L. Mills Arnold of Whitaker Hagenow &

Gustoff LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
                                         2


DOYLE, Judge.

       Michael Pieper appeals his conviction of felonious misconduct in office

following a jury trial. He argues there was insufficient evidence to support his

conviction, among other things. Because we agree, we remand the case to the

district court to vacate his conviction and dismiss the case.

       I. Background Facts and Proceedings.

       The history of the Green Bay Levee and Drainage District No. 2 (District)

was detailed in a prior opinion by a panel of this court and is therefore not

repeated here. See Pieper, Inc. v. Green Bay Levee & Drainage Dist. No. 2, No.

15-2032, 2016 WL 7395742, at *1-4 (Iowa Ct. App. Dec. 21, 2016). Relevant to

the issues in this case, Michael Pieper was elected to serve as one of the three

trustees on the District’s Board of Trustees (Board). The other two members

serving during the relevant time frame were Michael Walker and Pieper’s first

cousin Craig Pieper. Both Michael Pieper (Pieper) and Walker owned their own

businesses while serving as Board trustees.

       In or about 2011, the District learned it would receive FEMA funding to

restore and reshape its levees that sustained flood damage in 2008. To that end,

a civil engineer and his firm were hired by the Board to draw up plans for the

project. In very general terms, this required the engineer to determine how to

rebuild the levees to make them as impervious to flood waters as possible. Many

factors are involved in making this determination; dirt is not simply trucked in and

dumped along the river’s edge. Rather, the existing soil of a levee had to be

analyzed to determine the soil’s seepage and permeability, and with that

information, the engineer determined what material and soil composition to use
                                           3


and where to use it to reconstruct the levee.               Much like an architect, the

engineer’s work resulted in a design plan that contractors would follow to

complete the project. However, the engineer also served as an on-site inspector,

periodically inspecting the contractor’s work.

       As part of the engineer’s plans, certain areas located within the District’s

right-of-way were designated “borrow areas.” The contractor was to take soil

located in the designated “borrow area” and relocate it for use in the levee.

Selecting the borrow areas required a delicate balance; taking soil from an area

too close to the levee could weaken and ultimately damage the levee. Taking

soil beyond a certain depth could change the soil’s saturation and add costs.

Taking soil from an area too far away unnecessarily increased costs, as did

taking soil from land not in the District’s right-of-way.

       Before contractors submitted bids to work on the project, the engineer

provided project information to potential bidders, setting forth the project’s

requirements and instructions. Bids were thereafter accepted from contractors.

The lowest bid submitted was from Pieper’s business, MEPCO, and MEPCO was

awarded the contract. At this time, Pieper was serving as the Board’s chairman.

Pieper agreed that he would abstain from the issues related to the contract

before the Board.

       By April 2012, there were disputes between the engineer, Walker—in his

capacity as a Board trustee, and Pieper—as both the chairman of the Board and

as the owner of MEPCO. Walker believed the engineer was improperly following

Pieper’s instructions, i.e. that the engineer was taking the position of the

contractor, MEPCO, over the interest of the District.            The engineer believed
                                         4


Pieper’s instructions were given on behalf of the Board, not MEPCO.

       In or about June 2012, the engineer learned from his site-inspector that an

area had been excavated by MEPCO without authorization—i.e., soil had been

removed from an area that was not designated a “borrow area.” The engineer’s

analysis of that area, based upon topographical scans, found that “approximately

32,060 cubic yards of material had been removed out of that area.” Upon further

inspection, it was determined that the removal of this soil weakened that part of

the levee, and the Army Corps of Engineers directed that the levee had to be

restored back to its original design condition or the District risked “being thrown

out of the federal program” and losing federal assistance for repair of the levee in

the event of a catastrophe or loss. The engineer confronted Pieper about the

issue. Pieper asserted only 2500 cubic yards had been removed.

       The matter came before the Board at its June 28, 2012 meeting. All three

trustees were present, as well as the Board’s clerk, Vic Pierrot.        Pierrot had

served as the Board’s clerk since 2005 and performed the duties normally

associated with secretary and treasurer roles. Pierrot had decided to retire after

sustaining a head injury, and the June meeting was to be Pierrot’s last meeting.

During Pierrot’s tenure, if he was unable to attend a Board meeting, his daughter

would fill-in for him. She was present at the meeting and took some notes. Also

present at the meeting was the new clerk, Kim Ransdell, who had agreed to fill-in

as the clerk after Pierrot retired. Ransdell was a paralegal who had worked with

Pieper in the past, and Pierrot recommended her for the position at the meeting.

Pierrot agreed to assist her in the transition and to provide her with a “flash drive

containing all the work done since taking the job.”
                                          5


       The June meeting was contentious and lasted four hours, ending around

eleven p.m. A member of the public, who, at the time of trial was serving as a

trustee, began video-recording the meetings in May 2012.            He recorded the

June, July, and August 2012 meetings.

       Following the June meeting, Pierrot drafted “Unapproved Minutes” from

the meeting to be approved at the next meeting of the Board. Those unapproved

minutes stated that at the June 28, 2012 meeting, the minutes from the May

meeting were read, amended, and then approved unanimously by the Board.

Among other things discussed at the meeting, Pierrot’s draft indicated the Board

talked about conflicts of interest. The draft also stated, in relevant part:

       Lodwick [right-of-way (ROW)]- The culvert must be removed before
       the next meeting.

       Mississippi levee disturbances- Several areas where haul-through
       accesses were notched into the levee must be repaired per Corps
       speciﬁcations.

       The main levee is 67% complete.

       Lost Creek project- Restoration of ROW along Lost Creek levee is
       nearly complete.
       Mike W moved, Craig seconded:
       Seeding must be complete by July 15. Mepco must provide
       indemniﬁcation to address any soil erosion or seeding damage that
       occurs before July 2017.
       Discussion: None
       Results: Unanimous in favor with Mike P abstaining.

The draft closed that it was submitted by Pierrot and had three blank lines for

each trustee’s signature.

       On July 24, 2012, Ransdell sent Pieper an email with the subject line
                                          6


“Revised minutes of the meeting.”1 The revised draft sent to Pieper contained

several changes and additions, those relevant underlined below:

       Lodwick ROW- The District asked the contractor if the culvert could
       be moved by next meeting.

       The main levee is 67% complete.

       Craig Pieper motioned to accept borrow area from Station 840 to
       Station 880.
       Mike Walker seconded the motion
       It was recommended that it be seeded by July 15. Mepco must
       repair any soil erosion from water ﬂowing from this area until July
       2017. Discussion: None Results: Vote to approve was unanimous
       in favor with Mike P abstaining.

Like the prior draft, the revised draft stated it was submitted by Pierrot and had

three blank lines for the trustees’ signatures.

       At the July 2012 hearing, the June 2012 minutes were read for approval.

The July 2012 minutes stated:

              Minutes of the June 28, 2012 regular meeting were read.
              Craig moved to accept minutes as amended.
              [Pieper] seconded.
              Discussion: None.
              Results: Unanimous in favor
              [Walker] presented his own version of the borrow area
       minutes. [Walker] asked to make corrections to the minutes and
       additions to correct the borrow area during the minutes that were
       read. [Pieper], Chairman stated that the corrections to the minutes
       by [Walker] were never discussed at the meeting and they may
       have been discussed prior to the meeting and no changes were
       made and minutes are stood as read.

       At the August 2012 meeting, the July 2012 minutes were read for

approval. The minutes from the August 2012 meeting stated:

       [Walker] moved to correct June 28th and July 26th 2012 minutes.
       [Walker] again presented his own version of the borrow area

1
 On cross-examination, Ransdell testified she sent the email to all three Board
members.
                                       7


      minutes. [Walker] asked to make corrections to the minutes and
      additions to correct the borrow area the minutes were read.
      [Pieper], Chairman stated that the corrections to the minutes by
      [Walker] were never discussed at the meeting and they may have
      been discussed prior to the meeting.
      Amendments and Corrections will be the following to read as:
      [Walker] moved to accept minutes as amended by removing the
      word after to during. Changes to paragraph regarding Sara Jones
      will be changed from Walsh to the Corps.
      [Craig] seconded the amendments and corrections.
      Discussion: None.
      Results: Unanimous in favor with [Walker] opposing.

Walker refused to sign the July 2012 minutes at the August 2012 meeting

because he did not believe the July 2012 minutes reflected what was discussed

and approved at the June 2012 meeting.

      In April 2015, Pieper was interviewed by Lee County Deputy Sheriff Stacy

Weber as part of the deputy’s investigation. Pieper never made any admissions

that he changed the June 2012 minutes. Ultimately, Pieper was charged with

felonious misconduct in office for falsifying the minutes to add in language that

was favorable to his own company MEPCO but adverse to the District.

      The matter proceeded to trial in October 2016. The video-recordings from

the June, July, and August 2012 meetings were played for the jury. Additionally,

testimony was received from Pierrot, Ransdell, Walker, and others concerning

the June 2012 meeting and the minutes that followed. Craig Pieper testified, but

he had no real recollection of the June 2012 meeting, only that MEPCO would be

responsible for reseeding the area where soil had been taken improperly.

      Pierrot testified he learned changes had been made to his draft of the

June 2012 meeting minutes after the fact; Pieper did not ask him to make any

changes to the minutes. Pierrot agreed the general procedure concerning the
                                              8


minutes was that the Board’s meeting minutes were considered a draft and could

be revised until approved at the following meeting. He also testified he passed

everything he had on to Ransdell after his participation in the June 2012 meeting.

          Ransdell testified she received from Pierrot a flash drive with the minutes

on it. She understood she was to email the draft to all three members before the

upcoming meeting, and she thought that she did. She admitted she emailed

Pieper the “revised minutes,” but she was unsure who made the changes to the

revised draft she sent to Pieper. She said, “I have no idea. There’s a possibility

that [Pierrot] and I worked on them together. I don’t know.” Ransdell testified

she didn’t know if she made revisions to the minutes before sending them out.

She testified Pieper never asked her to change the minutes or make any

insertion into the minutes. She did testify she told the Board members that it

would be illegal or unethical for her to change Pierrot’s minutes, “especially when

[she] was new and [she] didn’t know what [she] was doing.” Ransdell was asked

again if she changed the minutes and she responded, “Not that I know of. I don’t

know.”

          Walker testified he first saw the draft of the June 2012 meeting minutes

about an hour before the July 26, 2012 meeting.2 He testified that, contrary to

the revised draft of the June 2012 meeting minutes, Craig Pieper never motioned

to accept borrow area from Station 840 to Station 880, and he therefore did not

second the motion. Walker testified this should not happen because he believed

it shifted liability from MEPCO to the District. He testified that after he received

the draft, he immediately typed corrections and additions, which he submitted at

2
    Ransdell’s email indicates it was sent on July 24, 2012 at 12:50 p.m.
                                         9


the July meeting. Walker recalled that the amendment had been accepted into

the minutes, and he testified he signed the last page of the revised June meeting

minutes because he believed his amendment was incorporated therein. Beyond

asking to have his amendment accepted, it is not totally clear if a formal motion

was made by Walker.       It appeared Craig Pieper had seconded a motion to

accept the amended minutes, but it is unclear what was being amended. There

does not appear to have been an official vote on the matter.3 Walker testified he

refused to sign the July 2012 meeting minutes at the August 2012 meeting

because it misstated what had been decided at the June 2012 meeting. The

recording of the June 2012 meeting shows that the indemnification issue was

discussed, and Walker testified he recalled “everybody agreeing that MEPCO

would handle the reseeding and repairs through July of 2017.” Walker signed

the June meeting minutes because he thought his amendment had been

accepted.4

       The jury found Pieper guilty as charged. Pieper now appeals the verdict,

challenging the sufficiency of the evidence to support his conviction. “Sufficiency

of evidence claims are reviewed for correction of errors at law, and we will uphold

a verdict if substantial evidence supports it.” State v. Ramirez, 895 N.W.2d 884,

890 (Iowa 2017). “We consider the evidence in the record ‘in the light most

favorable to the State, including all reasonable inferences that may be fairly

drawn from the evidence,’” but we also consider evidence that does not support

the verdict. State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017) (citation omitted).

3
   The Board’s meetings appear to have been conducted in a loosey-goosey fashion with
little regard to Robert’s Rules of Order.
4
   All three Trustees signed the June meeting minutes.
                                        10


Substantial evidence must do more than raise suspicion, speculation, or

conjecture, “it must convince a rational trier of fact that the defendant is guilty

beyond a reasonable doubt.” Id.; State v. Robinson, 859 N.W.2d 464, 467 (Iowa

2015). If we find the evidence was insufficient to sustain the conviction, double-

jeopardy principles prohibit a retrial and require remanding for dismissal of the

charge. See State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013); State v. Dullard,

668 N.W.2d 585, 597 (Iowa 2003); see also State v. Rooney, 862 N.W.2d 367,

378 (Iowa 2015) (remanding the matter for dismissal of the charge based upon

insufficiency of the evidence); State v. Brubaker, 805 N.W.2d 164, 167 (Iowa

2011) (same).

       II. Discussion.

       The marshalling instruction in this case submitted to the jury stated:

               The State must prove all the following elements of Felonious
       Misconduct While in Office:
               1. On or about April, 2011 through September 10, 2012,
       [Pieper] was a public officer.
               2. [Pieper] knowingly falsified a public record or document
       with knowledge that the writing was falsified.
               3. [Pieper] knew the writing would become a public record of
       a government body.
               If the State has proved all of these elements, [Pieper] is
       guilty of Felonious Misconduct While in Office. If the State has
       failed to prove any of the elements [Pieper] is not guilty.

See also Iowa Code § 721.1(2) & (3) (2011) (stating that a public officer or

employee commits felonious misconduct in office, a class “D” felony, if that

person knowingly “[f]alsifies any public record, or issues any document falsely

purporting to be a public document” or “[f]alsifies a writing, or knowingly delivers

a falsified writing, with the knowledge that the writing is falsified and that the

writing will become a public record of a government body”). The instructions
                                          11


defined “knowingly” and related terms “knowledge” and “knew” as used in the

instructions to mean Pieper “had a conscious awareness that that the public

record or document was false and would be used as a public record of a

government body.” Public record and public officer definitions were also set out

in the instructions; however, the term “falsify” was not defined therein.

       The term “falsifies” is not defined in the statute, so its common and

ordinary meaning applies. See State v. Walker, 574 N.W.2d 280, 289 (Iowa

1998). Looking to standard dictionary definitions, “falsify” means “to prove to be

false; to prove false so as legally to avoid, defeat, or rectify; to make false by

mutilation or addition: tamper with; counterfeit, forge, adulterate,” or to

“counterfeit or forge; to make something false; to give a false appearance to

anything . . . to tamper with, as to falsify a record or document.” Id. (quoting

Webster’s Third New International Dictionary 820 (unabr. ed. 1993); Black’s Law

Dictionary 603 (6th ed. 1990)). Importantly, “falsify” is a verb, which is a word

used to describe an action. See Black’s Law Dictionary 678 (9th ed. 2009).

       Here, there is simply no evidence that Pieper acted in any way to falsify

the June 2012 meeting minutes. Assuming without deciding that the information

changed in the revised June 2012 minutes before the July 2012 meeting was

false, the evidence does not show that Pieper made the changes or directed

Ransdell to make those changes. There is no question the changes were to

MEPCO’s benefit, but that does not demonstrate that Pieper made those

changes and thus falsified the minutes.

       We agree with the reasoning of a federal court in U.S. v. Craig, 3 F. Supp.

3d 756, 761 (E.D. Ark. 2014). In that case, Craig was charged with falsifying a
                                         12

document “after she gave it to the . . . prosecutor.” Id. at 762. Although the

evidence showed Craig gave the document to the prosecutor and represented

that it was true, there was no evidence Craig made the changes that made the

document false. See id. Essentially the same can be said about this case. Even

assuming the revised minutes were false and Pieper represented that they were

true, there was no evidence that Pieper was the one that made the changes or

that the changes were made at his direction, as required by the statute.

       In this case, it is clear the Board did not follow Robert’s Rules of Order

which would have helped ensure a proper record was created. Nevertheless, the

burden was on the State to prove, beyond a reasonable doubt, that Pieper

falsified the minutes. While Pieper may have had reason to do so, there was no

evidence that he did.     Because the evidence was insufficient to support his

conviction for felonious misconduct in office, we remand the case to the district

court to vacate his conviction and dismiss the case.5

       III. Conclusion.

       Because there was insufficient evidence in the record to support the jury’s

verdict finding Pieper guilty of felonious misconduct while in office, we remand

the case to the district court to vacate his conviction and dismiss the case.

       REVERSED AND REMANDED.




5
 Because we find the argument dispositive, we do not address Pieper’s other
arguments.
