When misconduct isn't a crime

The criminal laws do not protect Idaho citizens against all unethical and dishonest conduct. The recent CoiNuts cases in my office in Kootenai County highlight these frustrating limits.

Kevin and Sarah Mitchell, the perpetrators, issued post-dated checks that bounced, and took money from people with the promise of getting them gold, silver and coins to be delivered at a later date. Those promises were far too often not fulfilled.

However, under Idaho law, not all bad checks can be criminally prosecuted and not all unfulfilled promises can lead to a successful conviction.

In regards to the checks that the Mitchells bounced when they either post-dated those checks (dated in the future), or asked the customer to hold onto the check for a few days before cashing it, they simply created a debt for themselves. Under Idaho law, a debt created under these circumstances cannot be criminally prosecuted.

On the other hand, it IS theft to take another's property based on a false promise. However, the state must prove beyond a reasonable doubt that the defendant lied when making a promise at the time property was received.

In other words, in the Mitchell cases, the state's burden included proving what was in the defendants' minds at the time the promise was made.

The victims reported that the Mitchells made promises about when their orders would be filled. None of the victims named in the indictments received their orders in the time promised.

Kevin and Sarah Mitchell have said they did not promise to fill orders in a certain amount of time. In July 2012, Kevin Mitchell closed CoiNuts after being sued by customers.

The main challenge in the prosecution was proving beyond a reasonable doubt the Mitchells lied at the time they took orders and made promises. A reasonable person can and should struggle with the issue of finding beyond a reasonable doubt what was in a defendant's mind without a confession. Likewise, a person will struggle with the idea that intent can be proved by actions after the fact.

A person could have concluded that the Mitchells did intend to fulfill the orders but fell on hard times.

My office has prosecuted other challenging theft cases, including State v. Johnson, 156 Idaho 359 (Ct. App. 2014).

In that case, the defendant was found guilty by a jury, only to have the judge reverse the jury's decision.

The choice in mediation was whether to resolve the cases with some certainty, or run the risk at trial of a not-guilty verdict.

Had mediation failed, we would have aggressively tried the cases with the belief that we had a fighting chance of obtaining convictions.

Ultimately the decision by the prosecutors, investigators, and victims who participated in mediation was that the agreement for misdemeanor convictions was the better choice.

The Idaho Consumer Protection Act provides additional safeguards and remedies for this type of conduct.

The Attorney General's Office is pursuing a lawsuit under the act and has obtained an order prohibiting Kevin Mitchell from selling gold or silver in Idaho.

Kootenai County law enforcement and the Attorney General's Office have pursued available remedies on behalf of the CoiNuts victims, and will continue to do so.

It is my hope that this article and these cases serve to alert Kootenai County citizens to the remedies and limitations under criminal and civil law.