Wednesday, September 30, 2015

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

Monday, September 28, 2015

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

Friday, September 25, 2015

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.


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

Thursday, August 27, 2015

Brief Fist Fight on a Crowded Bus Was a Simple Assault, Not an Aggravated Assault or an Assault with Significant Bodily Injury

In re D.P. (decided August 13, 2015)

Players: Judges Fisher and Easterly, and Senior Judge Farrell. Opinion by Judge Easterly. Aaron Marr Page and Randy Evan McDonald for D.P. Trial Judge: Florence Pan.

Facts: Sixteen-year-old D.P. and her two friends started a fight with M.G. on a Metrobus on the way home from school. Blows were exchanged, and at the very end of the fight, which lasted only fourteen seconds, M.G. hit her head on a pole and briefly lost consciousness for “maybe a minute, maybe less.” M.G. was examined by emergency medical technicians who determined that she did not need to go to the hospital. No medical evidence was presented about M.G.’s injuries, and M.G. testified that she had “minor headaches” for “two/three days” after the incident. In the ensuing delinquency case, D.P. was adjudicated “involved” in an aggravated assault and an assault with significant bodily injury.

Issue 1: Was the evidence sufficient to find D.P. guilty of aggravated assault?

Holding 1: The evidence was insufficient to find D.P. guilty of aggravated assault because the evidence did not support a reasonable inference that D.P. had the requisite mental state, that is, she did not “manifest extreme indifference to human life.” The Court reiterates that the mental state required is “substantively indistinguishable” from the minimum state of mind required for second-degree murder, and held that the evidence was insufficient to prove that D.P. possessed that “gross recklessness/depraved heart malice.” In so holding, the Court noted that D.P. and her friends had no weapons, the assault was very brief and occurred in a crowded public place where bystanders could intervene, and the circumstances suggested that their intent was more to intimidate M.G. than to injure her. Accordingly, D.P.’s actions did not manifest extreme indifference to human life.

D.P. had also argued on appeal that M.G.’s injuries did not constitute “serious bodily injury” required for an aggravated assault conviction, but the Court declined to rule on that argument in light of its holding that the mens rea was not satisfied. The Court said that it is still an “open question” as to whether the brief loss of consciousness suffered by M.G., which required no medical treatment, would be enough to meet the definition of “serious bodily injury.”

Issue 2: Was the evidence sufficient to find D.P. guilty of assault with significant bodily injury?

Holding 2: The evidence was insufficient to find D.P. guilty of assault with significant bodily injury because M.G.’s injuries did not “require hospitalization or immediate medical attention.” The Court held that M.G.’s injuries were analogous to those suffered by the complainant in Quintanilla v. U.S., 62 A.3d 1261 (D.C. 2013), and that the Court was bound by the holding in that case. In both Quintanilla and D.P.’s case, the complainant had been examined by emergency personnel, and experienced soreness/pain for some days after the incident, but did not seek or require any further medical treatment. As such, M.G.’s injuries did not constitute “significant bodily injury” and the Court held the evidence insufficient to find D.P. guilty of assault with significant bodily injury. SN

Wednesday, August 19, 2015

Move to dismiss if you think your claim is jeopardy-barred

Stanley Moghalu v. United States (decided August 6, 2015).

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Belson.  Opinion by Judge Fisher.  Rahkel Bouchet for Mr. Moghalu.  Trial judge: Patricia A. Broderick. 

Facts:  Mr. Moghalu was tried three times for unlawful possession of a firearm and carrying a pistol without a license.  The first two trials ended in mistrials.  At the second trial, over which Judge Henry Greene presided, “[o]ver appellant’s adamant objection, the trial court declined to given an anti-deadlock instruction and declared a mistrial.”  Mr. Moghalu was convicted at the third trial, Judge Broderick presiding. 

Issue:  Appellant argued that Judge Greene abused his discretion by declaring a mistrial when there was no manifest necessity to do so and asserted that his third trial was barred by the Double Jeopardy Clause.

Held:  The Court holds that the double jeopardy claim was waived because appellant had not raised the “double jeopardy defense” prior to the third trial, before Judge Broderick.  It bases its ruling on cases that establish that double jeopardy claims can be waived if not raised at trial, and notes that this waiver need not be a Johnson v. Zerbst, “knowing, voluntary and intelligent” waiver.  The Court also states that it “need not decide” whether appellant may obtain relief under the plain error doctrine, because even if there were a colorable claim of double jeopardy (something the Court finds “highly doubtful”), it would not have been “clear or obvious” to Judge Broderick. 

Of Note:

  • The upshot here is that you must file a motion to dismiss on double jeopardy grounds if you have a claim that a mistrial was granted over objection when there was no manifest necessity for doing so at a prior trial.  (Note that a denial of such a motion is appealable pre-trial, if you are so inclined.)

  • The analysis in the opinion is questionable, because an objection to a mistrial on the ground that there was no manifest necessity is precisely the same claim as an objection to a retrial on double jeopardy grounds because a mistrial was granted when there was no manifest necessity.  And some of the Court’s opinion seems to turn on the fact that the judge at the third trial was different than the judge at the second -- suggesting that a lawyer needs to give the new judge a chance to pass on the question.  It would seem that the “trial court” is all one, however, and that the question whether there was manifest necessity justifying a mistrial was litigated and resolved at the second trial; indeed, the law of the case doctrine might even have militated against a new judge revisiting the same claim prior to the third trial.  In any event, the law is now the law:  file a motion to dismiss on double jeopardy grounds if this happens to you and you want the issue to be preserved for appeal.  JF

Friday, August 14, 2015

Offenses committed while on release? Better to stipulate now than try to fix it later.

Raymond O. Washington v. United States (decided August 13, 2015).

Players:  Associate Judges Fisher and McLeese, Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Washington.  Trial judge: Herbert B. Dixon. 

Facts:  Mr. Washington was prosecuted for his role in facilitating a drug transaction between an undercover officer and a man in a Miami Dolphins jersey.  His indictment charged Possession of Liquid PCP, Possession with Intent to Distribute (PWID) PCP, Distribution of PCP, and a violation of D.C. Code § 23-1328, for committing the offenses while on pretrial release.  Prior to trial, the parties discussed the possibility of a stipulation regarding the fact that Mr. Washington was on release status, but eventually the defense lawyer indicated a willingness to “go forward without the stipulation” and the prosecutor told the court that the parties had not reached agreement on a stipulation.   The trial judge instructed the jury on the elements of an offense committed while on release and gave a limiting instruction after the evidence regarding Mr. Washington’s release status was introduced.  Mr. Washington was convicted on all counts.  

Issue 1:  Whether admission of the evidence regarding Mr. Washington’s release status was plain error.

Holding:  The Court held that because defense counsel refused to stipulate about the pretrial release status, it was not plain error for the court to admit the testimony.  The Court recognized that D.C. Code § 23-1328 describes a sentencing enhancement, as previously held in Eady v. United States, 44 A.3d 257 (D.C. 2012), and did not decide the question whether pretrial release status need be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).  It concluded, however, that it was not plain or obvious error for the trial court to believe it appropriate to do so.  The Court went on to say that even assuming that it was a plain error that seriously affected Mr. Washington’s rights, it would not exercise its discretion to reverse under prong four of the plain error test given the compelling evidence of Mr. Washington’s guilt and his opportunity to stipulate about his release status at trial. 

Issue 2:  Whether trial counsel’s failure to object to the admission of the evidence constituted ineffective assistance of counsel.

Holding:  The Court indicated that it would not address the ineffectiveness claim on appeal, noting its preference that such an issue be litigated in the first instance in the trial court by a motion filed pursuant to D.C. Code § 23-110.

Issue 3:  Whether the Possession of PCP count merged with the PWID PCP.

Holding:  The government did not oppose vacating the Possession-of-Liquid PCP count, in response to appellant’s claim that it merged with PWID PCP, and the Court held that the two counts merge. 

Issue 4:  Whether the PWID PCP count merged with the Distribution count.

Holding:  The Court held that Mr. Washington properly stood convicted of PWID PCP as well as Distribution of PCP, because the man in the Miami Dolphins jersey had more PCP in his possession after the charged sale and the evidence supported a conclusion that Mr. Washington knowingly associated himself with the criminal venture that would involve future sales of the PCP.  

Of Note:
  • In footnote 2, the Court notes that the government “acknowledges” that Mr. Washington was “incorrectly indicted, and subsequently convicted, ‘of offenses committed during release.’”  Presumably, the government had mistakenly indicted the D.C. Code § 23-1328 violation as a separate offense, rather than as a sentencing enhancement attached to three indicted counts.  The government’s “acknowledgment” is a bit odd, as it appears that the issue was not raised by appellant on appeal.  Furthermore, as a remedy, the Court vacates the conviction on the “incorrectly indicted charge of offenses committed during release,” and directs the trial judge to “add a separate consecutive sentence to each underlying conviction.”  This most unusual remedy of adding sentences at the government’s request does not appear to have been contested by appellant or litigated during the appeal – perhaps because Mr. Washington received concurrent sentences for the underlying charges and a resentencing likely would have no practical impact for him.  Were such an issue to arise in another case in which the client were at risk of receiving an enhanced sentence, counsel would want to consider challenging the right of the Court to direct that additional sentences be imposed.    
  • The Court held that possession of liquid PCP merges with PWID PCP – an issue the government did not challenge, but did not expressly concede, probably because the possession offense specifies “liquid” PCP, while the PWID charge does not.  JF

Tuesday, August 11, 2015

Attempted-Battery Assault Is Not a “Crime of Violence” for Federal Immigration Purposes, No Right to a Jury Trial

Esperanza Contreras v. United States (decided August 6, 2015)

Players: Chief Judge Washington, Judge McLeese, Senior Judge Belson. Opinion by Judge McLeese. Gregory W. Gardner for Ms. Contreras. Motions Judge: Fern Flanagan Saddler. Trial judge: Michael Ryan.

Facts: Ms. Contreras became angry with her teenaged daughter and slapped her in the face, causing the girl’s nose to bleed. She was charged with simple assault, and moved for a jury trial on grounds that a conviction would subject her to possible deportation. The motion was denied and her bench trial resulted in a conviction.

Issue: Was the charged assault a deportable “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(e)(i) (2012), entitling Ms. Contreras to a jury trial?

Holding: No. Federal law requires that a deportable “crime of domestic violence” be, among other things, a “crime of violence” within the meaning of 18 U.S.C. § 16(a). Focusing on the attempted-battery type of simple assault for which Ms. Contreras argued she was convicted, the court held that such an assault is not a “crime of violence” under the federal definition because it does not require the same degree of violence. “Violence,” in the context of D.C.’s simple assault statute, refers to any “attempt to do unlawfully to another any bodily injury however small,” while the federal “crime of violence” definition requires “force capable of causing physical injury or pain to another person.” (emphasis added).

Of Note:
  • The court deemed it irrelevant that the facts of the charged crime did meet the federal “crime of violence” definition because courts look to the elements of a criminal statute, not the facts of each case, to decide whether it involves a “crime of violence” under federal law.
  • The court rejected Ms. Contreras’s sufficiency claim, ruling that the trial judge had an adequate evidentiary basis, in the form of harsh comments Ms. Contreras made during the incident to the effect that her daughter ought not to have been born, to conclude that she slapped the girl out of “hurt pride” rather than for disciplinary purposes. The judge thus did not err in rejecting Ms. Contreras’s parental-discipline defense. FT