Attempted Second-Degree Theft by Deception Is a Lesser Included Offense of Second-Degree Fraud

Michael J. Warner v. United States (September 17, 2015)

The players: Judges Glickman and Fisher, Senior Judge Farrell.  Opinion by Judge Glickman.  Regina Michaels for the Mr. Warner.  Trial Judge:  Patricia A. Wynn.

The Facts: The appellant was charged with misdemeanor second-degree fraud. In a bench trial, the judge acquitted him of that offense but convicted him of what she believed was a lesser-included offense, attempted second-degree theft. Appellant was leasing an apartment in the American University area and had no money to pay his rent or security deposit. He decided to make some money by advertising for a roommate on Craigslist. He accepted $800 from one woman, with an oral agreement that she would move in in December on a month to month basis to see if it worked out, and if it did, she would stay on the whole semester. Simultaneously, he was trying to sublease to another woman. After the first woman realized there was something fishy, she asked for her money back, but she never got it back. He testified that he intended to return the money as soon as he earned some.

The trial judge accepted the appellant’s testimony that he intended to permit the first woman to move in and live in the apartment in December and January, and thus rejected the government’s theory that he meant to scam her and never let her move in. Thus, she had doubt about the fraud charge, but questioned whether theft was a lesser included offense, that would permit conviction on the ground that he took the money and never gave it back. Without explaining her basis, or which statutory variant of theft she was relying upon, the judge ultimately convicted of attempted second-degree theft.

Issue 1: Is attempted second-degree theft a lesser-included offense (“LIO”) of second-degree fraud?

Holding 1:  While not every type of attempted second-degree theft is an LIO of second-degree fraud, one type is: attempted second-degree theft by deception. The elements of attempted second-degree theft by deception are: an overt act in furtherance of the offense, committed with the intent to obtain the property of another by deception. The mens rea for attempted theft by deception (though articulated in different words) is the same as for second-degree fraud, and the extended conduct required for fraud will always include an act sufficient for attempted theft by deception. Thus one is an LIO of the other. Further, that there are alternative means of committing attempted second-degree theft that would not be LIOs of second-degree fraud does not matter.

Issue 2:  Was the evidence sufficient to support a conviction for attempted second-degree theft?

Holding 2:  The evidence was sufficient to permit a finding beyond a reasonable doubt that that appellant induced the first woman to give him 800 dollars by implicitly promising that she could stay on in the apartment past January if she wanted, but he had intended from the inception to look for other roommates and kick her out sooner than she might have wanted. The woman who sent the 800 dollars was deceived because she sent the money laboring under a material misrepresentation.

However, a remand was required because although the evidence permitted the above inferences, the judge did not make clear that she actually found the facts in this manner, and may have relied on a different form of theft that is not an LIO of second-degree fraud. Because appellant had asked for the judge to make findings on this question and she did not, he was entitled to a remand.  SF

Read full opinion here.

Attempted Threats Is a Valid Crime in D.C.

Richard C. Jones v. United States (September 17, 2015)

The players: Judges Fisher and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith.  Separate concurrence by Judge Beckwith. Nicholas Q. Elton for Mr. Jones.  Trial Judge: Robert E. Morin.

The Facts: The appellant was convicted in a bench trial of attempted threats. In a hallway in Superior Court after a hearing where the complainant – the guardian ad litem for the appellant’s daughter – had recommended that the appellant should be permitted only supervised visits with the daughter, the appellant said to the complainant, “I’m going to smack the shit out of you,” and then proceeded to get loud.

Issues of note (others are omitted):

On plain error review, the appellant argued that attempted threats was not a valid crime because all attempts require a specific intent to put someone in fear and yet the DCCA has held that a completed threat is a so-called general intent crime that requires no such intent. The Court rejected this argument based on precedent that an attempted threat is a valid offense, and precedent upholding attempts to commit so-called general intent crimes.

The appellant also challenged the sufficiency of the evidence. The Court analyzed this claim on the assumption that the offense required “a specific intent to threaten” and not just an intent to speak words that are, objectively speaking, threatening to the hearer. It did so to avoid any conflict with Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires that a defendant “transmit[] a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” The same issue (with respect to the D.C. statute) is now being litigated before the en banc Court in Carrell v. United States, 80 A.3d 163 (D.C. 2013), vacated, reh’g en banc granted.  See our blog post on Carrell here.  The Court found the evidence sufficient.

Judge Beckwith’s Concurrence:  Concurring with herself, Judge Beckwith wrote separately to flag an inconsistency in D.C. law. In Braxton v. United States, 500 U.S. 344 (1991), the Supreme Court stated that the elements “for an ‘attempt’ at common law … include a specific intent to commit the unlawful act.” D.C. cases, however, say inconsistent things on this very point. She catalogs the various statements in the various cases.  SF

Read full opinion here.

Detective Renders Miranda Waiver Involuntary With Preamble That If Kid Didn’t Speak, He Would Be Thrown to “The Lions”

In re S.W. (September 17, 2015)

The players: Judges Blackburne-Rigsby & Easterly, Superior Court Judge Epstein sitting by designation.  Opinion by Judge Blackburne-Rigsby. Opinion concurring in part and dissenting in part by Judge Easterly.  Dissenting opinion by Judge Epstein.  PDS for respondent. Trial Judge:  Milton C. Lee, Jr.

The Facts: S.W. was arrested (for carjacking) and placed in an interrogation room. Before reading the Miranda rights, Detective Howland told him that he was going to give him an “opportunity” to tell his version because “I stand between you and the lions out there [meaning other police officers] …. [W]e have a lot of things going on out there, and they’re gonna try and say that you did it all.” Unlike the lions, “I think what happened today was just a one time thing.” The lions “said … you did a whole bunch of stuff, but in order for us to have a conversation, I have to read you your rights and you have to waive your rights.” He then told S.W, that if he answered “no” to any of the rights questions they could not have the interview. Thereafter, S.W. signed the card, wrote all yeses, and incriminated himself in a videotaped statement.

The Issues:  Did the police lions-preamble render the Miranda rights ineffective? Did the police lions-preamble vitiate the validity of the purported waiver so it was neither knowing and intelligent nor voluntary?

The Holdings: Two judges (Blackburne-Rigsby and Epstein) agreed that the lions-preamble did not render the Miranda warnings ineffective, and two judges (Blackburne-Rigsby and Easterly) agreed that the lions-preamble rendered the purported waiver involuntary and thus the statement should have been suppressed.

The Dissents: Judge Easterly dissented in part because she believed that the preamble undid the import of the Miranda rights, rendering them ineffective. Judge Epstein dissented entirely because he believed police complied with Miranda and the waiver was valid.

Analysis:

Whether the lions-preamble rendered the Miranda warnings Ineffective:

Appellant argued that the lions preamble, though different from the question-first tactic described in Missouri v. Seibert, 542 U.S. 600 (2004), that the Supreme Court held invalidated the subsequent warnings though they literally complied with Miranda, was of the same ilk – designed to confuse and misinform, rendering the Miranda warnings ineffective. The majority rejected this argument, holding that where S.W. did not make any statement before the Miranda rights and he was read a full set of rights, the preamble did not vitiate the warnings.

Judge Easterly’s dissent from this portion of the majority opinion makes the following points: 1) Seibert is not confined to the precise tactic used in Seibert; in Seibert, the Supreme Court recognized that when police strategists set out to undermine Miranda’s promise of effective procedural safeguards by using tactics that obscure the force and meaning of the Miranda rights, the courts cannot accept as effective a rote recitation of rights; a preamble that obscures core Miranda principles – that the suspect has a real choice about speaking, that the police are his adversaries, and that the consequence of waiver is that evidence will be created and used against him – invalidates the rights, though they are recited correctly; the lions speech was precisely such a Miranda-neutralizing tactic that the Court must condemn; 2) specifically, by telling S.W. that the Detective was offering him an “opportunity” to better his chances, he contradicted and neutralized the required warning that anything a suspect says will be used against him; the exhortation to waive now so he could help himself vitiated the warning that S.W, had a right to remain silent and to consult with counsel before he said anything; the Detective also countered the rights to silence and to counsel by implying that asserting those rights would come at a price – losing the “opportunity” of improving his chances by confessing; and by telling S.W. that the lions would fabricate charges against him if he did not confess, the Detective turned Miranda on its head by communicating that only he could help S.W. by coming between him and the lions, and that standing on his constitutional rights could only hurt him. 

Whether S.W.’s waiver was involuntary:

The majority held that S.W.’s waiver was coerced by the detective’s clear implication that if S.W. did not waive, the lions would pin false charges on him – “that if appellant does not waive his rights, detective Howland will throw him to ‘the lions.’” It is coercive to suggest that if a suspect invokes his rights, he will be penalized.

As both Judge Easterly and Judge Epstein point out, Judge Blackburne-Rigsby’s two holdings are in tension with each other: on the one hand, the majority opinion states that the lions-preamble did not distort the meaning of the rights, on the other hand it relies on the lions-preamble to hold that the respondent could not make a free decision about waiving the rights precisely because the preamble would make anyone feel coerced, as though he had no true option but to speak. The involuntary waiver holding did not really rely on anything peculiar to S.W., only the fact that he was given the lions speech.

Point for practitioners:  Be very aware of police preambles and other such tactics. They are rampant, and now that police interrogations are videotaped, they are also recorded. Don’t give up on Seibert-type arguments because the more the defense bar shows the Court that police are trying mightily to obscure Miranda with such tactics, the more the Court will be receptive to such arguments.  SF

Read full opinion here.