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.