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People v. Brenner





Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.


Rehearing denied August 20, 1985.

After a bench trial, defendant, a 21-year-old independent commodities broker, was found guilty of both deceptive practices (Ill. Rev. Stat. 1981, ch. 38, par. 17-1(B)(d)) and theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(b)(1)), and received a sentence of probation for one year and a $10,000 fine. *fn1 On appeal, he contends that: he was not proved guilty beyond a reasonable doubt; there was a fatal variance between the charges in the indictments and the evidence at trial; and because this dispute was properly civil, rather than criminal, in nature, his prosecution was a misuse of the criminal justice system.

The indictment for deceptive practices alleged that between August 3 and 15, 1982, defendant:

"[W]ith intent to defraud Northwest Commodities, Inc., and with intent to obtain control over property and to pay for property, to wit: commodity trading account of said Northwest Commodities, Inc., did issue and deliver a check drawn on the Continental Illinois National Bank and Trust Company of Chicago, Illinois, for the payment of more than one hundred fifty dollars in United States currency, knowing that the said money would not be paid by said Continental Illinois National Bank and Trust Company of Chicago, Illinois, in violation of Chapter 38, Section 17-1-D, of the Illinois Revised Statutes 1981, as amended * * *." (Emphasis added.)

The indictment for theft by deception charged that between the same dates he:

"[K]nowingly obtained by deception, control over a commodity trading account of a value in excess of three hundred dollars, the property of Northwest Commodities, Inc., intending to deprive said Northwest Commodities, Inc., permanently of the use and benefit of said property, in violation of Chapter 38, Section 16-1-B(1), of the Illinois Revised Statutes 1981, as amended * * *." (Emphasis added.)

At trial, one key witness testified for the State, a broker working for Northwest Commodities, Inc. (Northwest). Defendant testified on his own behalf. Extensive documentation of the financial transactions which formed the basis of the conviction was introduced as evidence.

The broker, who was a friend of defendant's and had met him while working at another commodities brokerage office, testified that on August 3, 1982, he met with defendant and his fiance so that defendant could open a trading account with Northwest. Defendant completed the necessary forms and gave the witness a $6,500 check to open the account. The check, made payable to Rosenthal and Company (Rosenthal), a firm, that essentially acted as Northwest's principal in a trading relationship, was drawn on a corporate account at Continental Illinois National Bank (Continental) in Chicago. Defendant and his fiance were that corporation's only officers and the only signatories on the account. Defendant's fiance actually signed the check. On the next day, defendant issued a second check from the same account, also payable to Rosenthal, for $7,500. This check also was credited to defendant's trading account, with his assent. The record indicates, however, that at the time this check was issued, the account balance at Continental was only about $600. On August 5, although the checks had not cleared for payment, the witness agreed to place defendant's orders. In this day's trading, defendant essentially broke even, after commission charges. In the meantime, the bank account balance dropped to about $300. On August 6, defendant again placed a number of trading orders with the broker and made a slight profit.

On August 8, when defendant said that he intended to make a major trade, the witness accepted a post-dated personal check for $10,000, drawn on a different bank and payable to Rosenthal, although defendant admitted at trial that this account lacked sufficient funds to cover this amount. Defendant also instructed him to put the $10,000 into the account only if needed; however, this check was neither credited to his trading account nor presented for payment. *fn2

On the following morning, defendant called and placed two significant trades in foreign currency. The two men talked several times; another broker at Northwest, who testified only briefly for the prosecution, said that he heard the witness say, "Listen to this, you won't believe what [defendant] is doing now." *fn3 The witness said that at a certain point, he refused to execute defendant's order to buy more because defendant was losing too much money already. He stated that defendant never placed a stop-loss order, despite the witness' urgings, and that defendant therefore lost approximately $13,000 on the foreign currency trades. He further denied that defendant ever complained about an alleged minor overcharge for commissions, although the evidence indicates a small adjustment ultimately was made on defendant's behalf.

The State's witness recounted that after he told defendant his account had to be closed out, they discussed defendant's debits of about $25,750 (approximately $11,000 from his early trades, $13,000 from the foreign currency transactions, and the rest from commissions owed). Defendant said that he already had given the witness checks totaling $24,000, he intended to remedy the problem, he needed time to move his money around and he would pay in a few days. On the following day, however, the witness discovered that payment on the checks had been stopped on August 9, of which he informed defendant. Shortly afterward, following a meeting between the witness, defendant and the owners of Northwest, a $5,000 cashier's check was credited to defendant; however, he never paid any more money despite numerous other conversations. Northwest eventually paid Rosenthal the monies owed from the trades at their regular meeting. In February 1983, the witness contacted the police.

Testifying on his own behalf, defendant denied that he ever intended to defraud anyone in these transactions, and said he did not issue the checks intending to stop payment on them. He stated that at the time in question he had the financial capacity to deposit money into his Continental account. The record shows that on August 11 he made a deposit of $6,700 into that account; and that the balance was about $5,800 at the end of that day. He also claimed he had a balance of about $3,300 with E.F. Hutton at the start of August; however, the record indicates that this account had been depleted to almost nothing by the time of the events in question. Defendant claimed a guaranteed deposit of $17,500 on June 1 with another commodities firm. He further testified that he had an agreement with his Continental account officer whereby the bank would notify him if he was overdrawn, and he could cover his checks. Defendant further asserted that he issued the $7,500 check only because his friend had lost the first $6,500 check, and that he placed a stop-loss order which would have cut his losses on the foreign currency trade from $13,000 to about $3,800.

Defendant related that he had a dispute with the Northwest broker about a relatively small amount of commission charges. Because of this disagreement, he told the broker that he was going to stop payment on the checks he had given him. Defendant admitted that: he later offered to give Northwest the $5,000 cashier's check as partial payment until the dispute was resolved; he offered to pay Northwest an additional $6,000 or $7,000 to resolve the matter; and, claimed he received threatening phone calls. He also admitted initially telling the police that he stopped payment because the broker made an "unauthorized ...

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