UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH W. TEAGUE; HELEN B.
TEAGUE; STEVEN ALLEN BARKER;
RITA STRAHOWSKI; SWANNEE BECK;
KAREN PEREZ TUCKER, Lifetime
Partners of PTL, as representatives
of a nationwide class consisting of
150,290 Lifetime Partners and of
27,839 persons who have partially
paid for lifetime Partnerships,
Plaintiffs-Appellants,

v.
                                                            No. 96-2186
JAMES O. BAKKER; DAVID A.
TAGGART; AIMEE GARCIA CORTESE,
Defendants-Appellees,

and

DELOITTE, HASKINS & SELLS; ROE
MESSNER; MESSNER ENTERPRISES;
COMMERCIAL BUILDERS OF KANSAS,
INC.; LAVENTHOL & HORWATH;
WILLIAM J. SPEARS,
Defendants.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CA-87-514-3)

Argued: March 6, 1997

Decided: April 8, 1998
Before RUSSELL* and NIEMEYER, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Wendell R. Bird, BIRD & ASSOCIATES, Atlanta, Geor-
gia, for Appellants. Michael Eli Quiat, USCHER, QUIAT &
USCHER, Hackensack, New Jersey; Ben Cotten, COTTEN & SEL-
FON, Washington, D.C., for Appellees. ON BRIEF: David J. Myers,
BIRD & ASSOCIATES, Atlanta, Georgia; Thomas T. Anderson,
Samuel F. Trussell, THOMAS T. ANDERSON & ASSOCS., Indio,
California; Fred H. Moody, Jr., MCKEEVER, EDWARDS, DAVIS
& HAYS, Bryson City, North Carolina, for Appellants. Lamar
Gudger, GUDGER & GUDGER, Asheville, North Carolina, for
Appellee Bakker; Nelson S. Casstevens, Jr., CASSTEVENS, HAN-
NER, GUNTER & GORDON, Charlotte, North Carolina, for Appel-
lees Bakker and Cortese.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this case involving the sale of lodging benefits in a vacation
park, the district court instructed the jury that"[i]f the investors were
_________________________________________________________________
*Judge Russell participated in the hearing of this case at oral argument
but died prior to the time the decision was filed. The decision is filed by
a quorum of the panel. See 28 U.S.C.A. § 46(d) (West 1993).

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attracted primarily by the prospect of acquiring use and not [by]
financial returns on their investment there is no security." The jury
found that the real estate interest in question was not a security as
defined under federal securities law. We must decide whether this
portion of the jury instructions, in conjunction with the entire jury
charge, adequately stated the controlling law. Concluding that it does,
and that there is no other reversible error, we affirm.

I.

We discussed the facts and procedural history of this case at
length in Teague v. Bakker, 35 F.3d 978, 981-985 (4th Cir. 1994)
("Teague I"), cert. denied, 513 U.S. 1153 (1995), and we refer the
reader to that opinion for any details missing here. In sum, the plain-
tiffs are members of a class of approximately 160,000 individuals
who purchased "Lifetime Partnerships" from the television evangelist
James O. Bakker and his PTL ministry. The partnerships ostensibly
provided partners with short-term annual lodging at the "Heritage Vil-
lage" vacation park, an addition to the "Heritage USA" religious
theme park in South Carolina. Bakker planned to finance the con-
struction of the necessary hotels and bunkhouses through the sale of
the partnerships. Although a certain percentage of the rooms would
be reserved for use by partners, the remaining rooms were to be
rented at market price in order to finance the maintenance and opera-
tion of the facilities. This vision proved illusory. The overwhelming
majority of the partners never received the lodging benefits because
Bakker wildly oversold the partnerships and failed to construct all of
the promised buildings.

In late 1987, the plaintiffs filed this suit, alleging various claims
against Bakker and others associated with the Lifetime Partnership
scheme. Of particular relevance to this appeal, the plaintiffs sought to
hold Bakker liable for federal and state securities law violations. The
case was tried in 1990. Near the close of the evidence, the district
court held that the partnerships were not "securities" as a matter of
law. Accordingly, the district court dismissed the plaintiffs' securities
law claims. The jury eventually found Bakker liable for common law
fraud, however, resulting in a judgment of $129 million in damages.

Both Bakker and the plaintiffs appealed various issues stemming
from the 1990 trial. In Teague I, we upheld the common-law fraud

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judgment, but reinstated the plaintiffs' securities claims against Bak-
ker and remanded for a retrial. 35 F.3d at 990-991, 995. At the close
of the retrial, the district court instructed the jury on the "investment
contract" and "risk capital" tests for determining whether an interest
is a security. The jury found that the partnerships were not securities.
The plaintiffs now argue that the district court erroneously instructed
the jury concerning the "investment contract" test.

II.

The standard of review in this case is well established. We will not
reverse a jury verdict based on alleged errors in a trial court's jury
instructions if the charge, as a whole, adequately states the controlling
law. Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987).1

III.

The Securities Act of 1933 and the Securities Exchange Act of
1934 define "security" to include an "investment contract." 15 U.S.C.
§§ 77b(a)(1), 787c(a)(10). The Supreme Court developed a definition
of the term "investment contract" in a series of opinions spanning four
decades. See SEC v. C.M. Joiner Leasing Corp. , 320 U.S. 344 (1943);
SEC v. W.J. Howey Co., 328 U.S. 293 (1946); United Housing Foun-
dation, Inc. v. Forman, 421 U.S. 837 (1975); and International Broth-
erhood of Teamsters v. Daniel, 439 U.S. 551 (1979). According to the
Court, an investment contract exists where there has been an invest-
ment in a common enterprise that, through the entrepreneurial or
managerial efforts of others, is reasonably expected to generate profits
for the investor in the form of capital appreciation or participation in
earnings. Daniel, 439 U.S. at 558-61; Forman, 421 U.S. at 852-53;
Howey, 328 U.S. at 298-99.
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1 To our chagrin, the joint appendix does not contain a transcript of the
jury charge. Though we obtained a complete transcript for ourselves, we
would have been spared this annoyance had counsel paid close attention
to the rules of court. See Fed. R. App. P. 30(a) ("The appellant must pre-
pare and file an appendix to the briefs which must contain: ... (4) any ...
parts of the record to which the parties wish to direct the particular atten-
tion of the court.").

                     4
Plaintiffs contend that the partnerships are "investment contracts"
under this law. The district court instructed the jury that "[i]f the
investors were attracted primarily by the prospect of acquiring use
and not [by] financial returns on their investment there is no security."
The plaintiffs argue that the word "primarily" should have been
replaced with the word "solely" in order to bring the charge into con-
formity with the Supreme Court's holding in Forman.

Forman announced the rule that transactions solely for use are not
securities as a matter of law. On the other side of the spectrum, in
Howey, the Supreme Court held that transactions solely for profit are
securities as a matter of law. In Teague I, we recognized that mixed-
nature transactions should be submitted to the jury for a determina-
tion. Thus, the problem confronting the district court was how to con-
vert this assessment into a practical legal test for the jury.

The district court's solution, to instruct the jury that "[i]f the inves-
tors were attracted primarily by the prospect of acquiring use and not
[by] financial returns on their investment there is no security," is sup-
ported by common sense and by persuasive precedent from other fed-
eral circuit courts. In Rice v. Braniger Organization, Inc., 922 F.2d
788 (11th Cir. 1991), a case involving the sale of equity memberships
in real estate, Retired Justice Powell interpreted his own Forman
decision. Justice Powell concluded that the "United States Supreme
Court has held that where those who purchase something with the
primary desire to use or consume it, the security laws do not apply."2
Id. at 790 (emphasis added). The Rice opinion went on to examine
both promotional materials offered by the sellers and the motivations
of the purchasers. Id. Similarly, in Aldrich v. McCulloch Properties,
Inc., 627 F.2d 1036 (10th Cir. 1980), the court held that the subdi-
vided real estate lots purchased by the plaintiffs were "not securities
if the purchasers were induced to obtain them primarily for residential
_________________________________________________________________
2 In Teague I we distinguished Rice on its facts, but did not disavow
Justice Powell's reading of his earlier Supreme Court opinion. 35 F.3d
at 989 n.13. It is also worth noting that in Daniel, where the Supreme
Court held that an employee's interest in a noncontributory, compulsory
pension plan is not a security, the Court asserted that the "employee is
selling his labor primarily to obtain a livelihood, not making an invest-
ment." 439 U.S. at 560.

                    5
purposes--`to occupy the land or develop it themselves.'" Id. at 1040
(quoting Howey, 328 U.S. at 300.)

Plaintiffs also attack the instruction because it is stated in terms of
the purchasers' subjective motivations. There is a small kernel of
merit in plaintiffs' argument, but not enough to upset this verdict. The
subjective intention of a given purchaser cannot control whether
something is a "security," else some might have purchased securities
while others did not. The proper focuses of the inquiry are on the
transaction itself and the manner in which it is offered. On the other
hand, where most intended purchasers share a common understanding
of, and have similar motives stoked by, an offering, the "subjective"
understanding and motives are powerful evidence of the objective
intent and effect of the offering. In other words, the subjective feeling
of the vast majority of purchasers is very likely the feeling the seller
objectively intended to produce.

The test for the adequacy of a jury instruction"is not one of techni-
cal accuracy in every detail." Spell, 824 F.2d at 1395. Taken as a
whole, the jury charge adequately conveyed to the jury that it was to
determine whether consumption or investment was the dominant
theme of the transaction.

IV.

Our decision renders the majority of the plaintiffs' other claims
moot. One issue does bear brief mention, however. Bakker refused to
answer questions about the alleged securities fraud, citing his Fifth
Amendment right against self-incrimination. Plaintiffs requested that
the district court compel Bakker to testify; the court declined. On
appeal, plaintiffs assert that the possibility of Bakker's facing addi-
tional charges is and was so remote that his right against self-
incrimination would not have been abridged by compelled testimony.
See Zicarelli v. New Jersey Commission of Investigation, 406 U.S.
472 (1972).

Unlike in Zicarelli, where the questions posed (involving crimes in
New Jersey) could not have led to the foreign prosecution the defen-
dant supposedly feared, Bakker would have taken a palpable risk had
he testified. It may well be that there is little current likelihood of

                     6
prosecution; on the other hand, the unlikeliness is the result of pro-
secutorial discretion, and new information could always reignite inter-
est. Bakker has the right to refuse to provide the kindling.3

Accordingly, we affirm the judgment of the district court.4

AFFIRMED
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3 Plaintiffs also argue that the lapse of time since the events in question
would protect Bakker. We disagree. The Sixth Amendment's guarantee
of a speedy trial attaches only when an individual becomes an "accused."
It has no application to preindictment delays. United States v. Marion,
404 U.S. 307, 313 (1971).
4 Appellants' motion to strike portions of Bakker's brief is denied.

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