Reason #1:  It’s Thursday, and we are expecting a big rainstorm.  I remember to bring my umbrella – a very distinctive umbrella with blue and white stripes – and I leave it in plain view in the lawyer’s lounge of D.C. Superior Court.  After all, the only people allowed into the lounge are my colleagues, other defense lawyers.  Having finished up court for the day, I look outside and see that it is pouring.  Thank goodness I remembered the umbrella.  Except that when I go downstairs, I find that someone else apparently forgot to bring his/her umbrella and has taken mine.  What kind of person – a lawyer no less – would do something like that?  Two days later I am still crabby about that.

Reason #2:  My client has entered into a deferred prosecution agreement.  These agreements are generally a good thing for first-time offenders charged with minor offenses. The person performs an agreed upon set of conditions and avoids any new arrests for six, nine or twelve months.  In return, the government agrees to dismiss the charges upon the successful completion of these conditions.  In other words, the person charged with the offense avoids the risk of trial, and comes out of the whole unfortunate experience without a conviction on his/her record.

My client’s agreement includes the condition that she pay $400 in restitution to the complaining witness, someone I will call Ms. X.  The incident which led to my client’s arrest apparently resulted in Ms. X losing her car keys.

Coincidentally, at the time we entered into the agreement, I had just had to replace my own keys for a very similar car, and was surprised at the $150 price tag.  Four hundred dollars to do the same thing sounded like an even more unreasonable amount of money.  The prosecutor – someone I trust — assured me that my client would not have to pay anything until Ms. X produced the receipt, and we entered into the agreement.

That was nine months ago.  Two days before the final court listing, and after much prompting by the prosecutor, Ms. X finally produces a receipt.  It is for $271.

I draw three conclusions.  First, Ms. X needs to drive a different car or find herself a new car dealership.  Second, the prosecutor should bring criminal charges against Ms. X for attempted theft.  My client could serve as the complaining witness. Third, the lawyer who took my umbrella could serve as Ms. X’s counsel.  They apparently have much in common.

Mark Pryor of D.A. Confidential says he must have been the last person in the world to have seen this video on YouTube. He’d better make that second-to-last person. I hadn’t seen it either.

Police have released the name of the man who was shot on Friday after he robbed a bank in Takoma Park, Maryland and then tried to escape with a bank teller as his hostage. The man has been identified as 43-year-old Carlos R.E. Arcia of Hyattsville.

According to the Washington Post, the police had not been able to make an immediate identification. A co-worker of Arcia called the police on Sunday after Arcia failed to show up for work for two days. Arcia’s landlord had also filed a missing-person report.

Warning: The video below includes the very disturbing image of Mr. Arcia being shot by police officers.

Extortion is one of my favorite crimes, a fact which, I have to admit, is usually not much consolation to the person who gets me on the phone worried that he/she may be charged with it.  At the same time, however interesting the offense may be, you rarely come across it in practice.

A former federal prosecutor told me recently that, while he can remember charging the criminal offense of extortion in both D.C. and Virginia, he never once took a case to trial.  I myself have never defended a person charged with this offense, nor do I know a criminal defense attorney who ever has. It is therefore surprising to me how many telephone calls and emails I get with questions about this crime.

Extortion is similar to robbery in that it combines two criminal offenses:  theft and assault.  Like theft, extortion involves the wrongful taking of another person’s property.  Like assault, it requires force or the threat of force.  Extortion is different from robbery in that, instead of threatening immediate force or violence, it threatens future harm, either physical or economic.

[If extortion is one step removed from robbery, then blackmail – to the extent it still exists – is two steps removed.  It too involves the wrongful taking of another person’s property.  And it too requires a threat.  The threat in blackmail, however, is not of force or violence, either immediate or in the future.  Instead, the threat of blackmail is usually one of ruined reputation, disgrace, or embarrassment.]

While extortion was originally targeted at public officials who misused their positions of trust for personal gain, the offense has been gradually broadened to include acts by private individuals.

There are two elements to the offense in D.C.  First, the person needs to obtain or seek to obtain the property of another person with the other person’s consent.  Second, the other person’s consent needs to have been coerced through “actual or threatened violence or by wrongful threat of economic injury.”  Virginia’s statute is very similar.  The only difference is that in Virginia the property or thing of value has to be actually turned over by the person being extorted in order for the crime to be completed.  Because of the threat element, the offense is punishable as a felony in both jurisdictions.

How can you not love the theft crimes in Virginia?

While most jurisdictions have combined theft offenses into a single catch-all category, Virginia continues to maintain the common law distinctions between larceny, embezzlement and larceny by false pretenses.

This means that the government cannot simply charge “theft” and then make out any form of theft at trial to secure a conviction.  Instead, the government must decide which form of theft fits the facts of a particular case to charge in the information/indictment and then make out the elements of that offense at trial.

The keeping of these distinctions raises opportunities for criminal defense lawyers practicing in Virginia.  It also means that they get to read all sorts of cases from the late 1800s in which courts hadn’t yet seemed to figure out that you can sound lawyerly while still speaking English.  I haven’t had to struggle through the reading of a case like that since law school.

Today’s entry focuses on the criminal offenses of “embezzlement” and “larceny by false pretenses” in Virginia.

“Larceny” has traditionally been defined as the “trespassory taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently.”  The term “trespassory” was used to convey some type of wrong; that is, that the taking was done without the permission of the property’s true owner.   If you invited me over to your house for tea and I put an ashtray into my pocket intending to steal it from you while you were in the bathroom, that would qualify as larceny.

According to Wayne LaFave, the nation’s preeminent expert on criminal law and procedure, the British courts that originally framed the laws on larceny wanted to distinguish between the taking of property from the victim’s possession and the misappropriation of the same property once it was already in the wrong-doer’s possession. The courts’ primary interest, LaFave says, was in reducing the potential for violence posed by the risk of retaliation: People are more likely to retaliate when property was taken directly from their possession. Since larceny was considered a capital offense at that time, the courts were also interested in carving out less serious forms of the offense. Instead of simply broadening the scope of larceny, as had been done with burglary and other crimes, the courts defined two additional offenses to supplement existing law on larceny:  embezzlement and false pretenses.

I’ll go back to the ashtray example to illustrate the differences between larceny, embezzlement, and false pretenses.

I have already noted that were I to take the ashtray without your knowledge or permission while you were in the bathroom, that would be larceny.  It would be the unlawful taking of your property against your will with the intention of permanently depriving you of it.

If, by contrast, you were to give me the ashtray to safeguard for you and I were later to decide to permanently deprive you of it, that would be embezzlement.  Embezzlement is defined as “the fraudulent conversion of property of another by one who is already in lawful possession of it.” You have willingly handed over the piece of property to me so there is no trespassory taking.  And I don’t form my criminal intent – that is, decide to steal it from you – until later.

Finally, if I were to write you a check to buy the ashtray from you knowing full well that the check would not be honored by the bank and you were to hand the ashtray over to me on the assumption that it would be, that would be larceny by false pretenses.  The key thing here, and what distinguishes this from embezzlement, is that you are passing title (i.e., ownership) of the ashtray to me, not just custody.  I also need to have formed the criminal intent in my mind at the time of the taking.

To complicate things a bit, how about if I were to tell you that I wanted to borrow the ashtray from you in order to have it appraised while knowing full well that I had no intent of ever returning to you and you agreed to allow me temporary custody of the ashtray during the appraisal?  This in fact puts us back into the category of larceny; in this case, “larceny by trick.”

Because my criminal intent arises at the time of the taking, my actions would not constitute embezzlement.  According to the definition provided above, embezzlement requires that the property in question already be in the lawful possession of the wrong-doer.  And since tricking you into turning over custody of the property to me would be unlawful, I could not already be in lawful possession of the ashtray. Similarly, because you were misled into turning over custody but not ownership of the ashtray to me, my actions could not constitute larceny by false pretenses.  Larceny by false pretenses requires that title also pass.

Confusing? Absolutely. And this is why Virginia’s failure to consolidate all three offenses into a single theft statute presents so many opportunities for criminal defense attorneys.

According to the Washington Post, a 19-year-old man wearing a Metro bus driver’s uniform walked into the Bladensburg bus garage, got into a bus, and drove away. But instead of making off with the bus, the man drove the correct B2 route, picking up passengers along the way. It wasn’t until he crashed the bus four miles into the route and fled that anyone was alerted to the fact that he may not have been legitimate.

The man, who told investigators he was simply fascinated with buses, has been charged with unauthorized use of a vehicle and fleeing the scene of an accident.

There are four elements to the criminal offense of unauthorized use of a motor vehicle in D.C.  The government must first prove that the person took, used, or operated the vehicle.  Second, the government must demonstrate that the taking/use was for the person’s own profit, use, or purpose.  Third, the taking/use needs to be without the owner’s consent.  Finally, the government must prove that the person knew that he or she was acting without the owner’s consent.  The person does not need to actually steal or intend to steal the vehicle.

Motor vehicle is defined as any automobile, self-propelled mobile home, motorcycle, truck, truck trailor, or bus.  Unauthorized use of a motor vehicle is a felony offense punishable by a maximum fine of $1,000 and up to five years of imprisonment.

In 2001, the actress Winona Ryder was arrested for shoplifting $5,500 worth of goods from a store in Beverly Hills.  As captured on the store’s surveillance tape, Ms. Ryder went into a Saks Fifth Avenue store and stuffed a number of garments into empty shopping bags.  Ms. Ryder then walked out of the store and was confronted by security officers outside.

Ms. Ryder’s offense typifies what we might normally associate with the crime of shoplifting; that is, a person goes into a store, stuffs items into a bag, and then walks out of the store without paying for the merchandise.  Everyone would probably agree that, absent inadvertence or mistake on the part of the person taking the property, shoplifting has been committed in this scenario.

Let’s try some different scenarios.  What would have happened had Ms. Ryder been stopped after she put the items into her bag but before she left the store?  Would this still have been shoplifting?  How about if she had been stopped at the moment she picked up the first item of merchandise from the store shelf?

While I am not familiar with California law, I can tell you that, theoretically, Ms. Ryder could have been convicted of shoplifting in Washington, D.C. in all three scenarios above, including the scenario in which she does nothing but picks up the item from the shelf. Allow me to explain, focusing on this third and most unlikely scenario.

There are three elements to the crime of shoplifting in Washington, D.C.  The first element is that the item in question is the “personal property of another.”   The prosecution does not need to prove that the property actually belonged to the store.  It just needs to prove that the property does not belong to the defendant.  While defense lawyers can always be creative in introducing obstacles, the prosecution generally should have no problem proving this element of the offense.  It can, for example, introduce the testimony of a witness to identify the item in question as belonging to the store.

Secondly, the prosecution must prove that the defendant either concealed or took possession of the property, removed or altered the price tag or some other identifying mark, or transferred the property from one display container to another.  Again, assuming reliable eyewitness testimony, this would be relatively easy for the prosecution to prove.  A witness could testify as to what he or she saw the defendant doing on that date.

Where the case gets more complicated is with respect to the third and final element requiring the prosecution to prove criminal intent.  Specifically, the prosecution must prove that, at the time the defendant came into contact with the property, he or she had the criminal intent either (1) to “appropriate” the property offered for sale without making complete payment for it or (2) to defraud the owner of the value of the property.

Because neither the judge nor jury can read the defendant’s mind to determine precisely what he or she was thinking at the time of the incident, the prosecution’s case with respect to this element of the crime will necessarily be through circumstantial evidence.

It is easier for the judge or jury to infer criminal intent if the person has already walked out of the store with the items in his or her bag without paying for them.  The prosecution’s case is strengthened if the person resists arrest or flees.  These actions could suggest “guilty knowledge.”

Less clear but still no major obstacle would be the situation in which the suspect has simply stuffed the merchandise into a bag or hidden the items on his or her person.  Most people would agree that concealing an item could suggest an intent to steal. Absent a credible explanation from the defense on some type of inadvertence or mistake, a judge or jury could infer that the person was planning to steal the items from this suspicious behavior.

But how about the situation in which the person does nothing more than pick up the item from the shelf?  Could the prosecution prove shoplifting in this scenario?  While I am not aware of any case in which this happened in either of the two jurisdictions in which I am licensed to practice law, it is theoretically possible.

How so?  The D.C. Code provides that the criminal act required to proving shoplifting can be nothing more than the “taking possession of the property.”  In other words, you don’t actually need to conceal the item or walk out of the store with it.  Picking up an item from the store shelf would satisfy the criterion of “taking possession.”

The question then becomes:  What was the defendant’s intent at the time he or she committed this act?   And how does the prosecution prove this intent?

It is unlikely that the person would announce at the time of picking up the property that he or she was planning to steal it.  It is also unlikely that the prosecution would be able to locate a witness to testify that, prior to going into the store, the suspect had told him or her that the suspect was planning to shoplift.

More likely would be the situation in which the prosecution would try to prove the criminal intent element of the offense through the defendant’s prior convictions for shoplifting.  The admissibility of prior “bad acts” is a complicated issue.  As such, it will need to be addressed at greater length in a future posting.  For the purposes of this entry, allow me to say that the prosecution could conceivably attempt to have the judge or jury infer criminal intent at the time the suspect picked up the item from the fact that the suspect had committed shoplifting before.  The prosecution could not introduce the prior convictions to show that the person was a bad person or had a propensity to commit shoplifting.  But, assuming the court granted the prosecution’s motion to introduce the evidence, the prosecution could use the prior conviction to show that the act of picking up the item was part of a pattern of shoplifting or to counter the defense lawyer’s claims that the suspect would “never, ever shoplift.”

In other words, beware Ms. Ryder!  While our criminal system seeks to prevent a defendant from being convicted on one offense for his or her unrelated actions on another day, a criminal past can come back to bite her.  She should think twice the next time she walks into a store and picks up an item from the shelf, particularly if she is in Washington, D.C.

How many times have you heard someone complain that he or she has been robbed?  A person returns home from vacation and finds a backdoor broken and a computer missing.  Oh my goodness, dear, we’ve been robbed!  A wallet is taken from a gym locker.  Someone robbed my wallet!

Technically, the people have not been robbed.  They’ve been burglarized in the first instance and the victim of theft in the second.

Robbery is an interesting mixture of two other crimes:  theft and assault.  Like theft, it involves the unlawful taking of property of another with intent to deprive.  Like assault, it involves bodily injury or the threat of bodily injury.  Put the two offenses together and you have robbery.

But it is not burglary.  Burglary is the entering of a dwelling or some type of structure with intent to commit a crime.  In Washington, D.C., if the structure is an occupied dwelling (that is, a home in which someone is present at the time), it is a first degree burglary.  Otherwise, it is burglary of the second degree.

It doesn’t matter what the crime is, just as long as the crime is separate from the entry itself.  That is, the crime the person intends to commit could not be burglary or unlawful entry.

All of this means that a husband who returns to his own house planning at the time he enters the home to assault his wife could be convicted of burglary.  It means that a person who breaks into someone else’s house and who, once inside, decides to take some property could be convicted of unlawful entry and theft.  But not burglary.

It is of course impossible for the prosecution to actually prove what the defendant was intending to do at the time he or she entered the dwelling or structure.  The prosecution will thus have to prove intent through circumstantial evidence.  Was the defendant shouting at the time he entered the house that he was angry and was going to harm his wife?  That would be a pretty good indication of criminal intent.  Did the defendant have an empty bag at the time he entered a store?  That might suggest he was planning to fill the bag with store merchandise.

But I’ve digressed.  Back to robbery.  A referee makes a bad call in a football game, giving the other side the win.  We wuz robbed!  Is this in fact robbery? Is the referee guilty of a criminal offense?

Let’s apply the elements to find out.  First of all, something of value needs to be taken.  The “something of value” doesn’t need to be physical property.  A win could be valuable, particularly if a lot of wagers have been made on the outcome of the game.  You might therefore argue that the first element has been satisfied.

Second, the taking needs to be “through force or violence.”  Hmmmm.  Not so good.

Third, the taking needs to be either directly from the person or from the person’s possession.  Again, not so good.

The referee might be guilty of bad judgment.  Or if deliberately trying to fix the game, the referee might be guilty of some other type of criminal offense.  But he is not guilty of robbery.

In researching forgery and fraud laws in Washington, D.C., I was reminded of two of my favorite stories.  I tell the stories now not just because I find them entertaining, but also because I think they illustrate the differences between the modern day criminal offenses of forgery and fraud, at least as the two offenses are defined in D.C.

I recite the first story from memory because it was an old story I saw in a magazine once, and I am not able to find it on the Internet.  According to legend, the Italian sculptor Amadeo Modigliani was working in his studio one day on some sculptures.  The artist supposedly became dissatisfied with some sculptures he was working on and, in a fit of frustration, threw the unfinished sculptures out into a canal next to his studio.  The sculptures were never recovered.

A half century or so later, local authorities were excavating the canal next to Modigliani’s workshop when they recovered a couple of unfinished sculptures that bore a striking resemblance to Modigliani’s style.  The authorities consulted leading art experts, including some who specialized in Modigliani’s work.  The experts confirmed that, because of the unique style, the sculptures could only have been done by the great artist himself.

At this point a couple of Italian art students came forward.  They said that they had heard the legend about Modigliani and the sculptures he threw out into the canal, and when they read in the newspaper that the canal was being excavated, they decided to play a little prank.  They made the sculptures imitating Modiglianoi’s style.  They then buried the sculptures in the canal one night for the workmen to uncover the next morning.

This, however, was not the end of the story.  The experts refused to retract their earlier claims of authenticity, even when the art students produced a videotape showing themselves throwing the fake Modiglianis into the canal.

I heard the second story on an NPR interview with Edward Dolnick, author of The Forger’s Spell.  While Dolnick tells the story much better than I ever could, it involved a failed artist named Han van Meegeran who made a fortune by forging works supposedly done by Dutch painter Jan Vermeer.  And, like the students in the Modigliani story, he succeeded by relying on the arrogance of the art experts.

After his own artistic career failed shortly before World War II, van Meegeran began to forge artwork he claimed had been painted by Vermeer.  There may have been several reasons van Meegeran picked Vermeer.  First, Vermeer was very famous and his works could be expected to fetch a lot of money.  Second, there were not many Vermeer paintings in existence, leading some experts to speculate on missing or lost artworks.  Third, there had been some discussion among experts about the direction Vermeer’s art would have taken had he lived longer and produced more works.

Van Meegeran listened to the experts and he obliged them.   In what Dolnick describes as the “uncanny valley,” van Meegeran didn’t try to imitate Vermeer too closely.  That would have drawn suspicion.  Instead, he took Vermeer’s work in slightly new directions – doing religious work, for example – while imitating Vermeer in more subtle ways.

Again, the experts validated the artwork, and that of course made it easier to sell new forgeries because the new forgeries were similar in style to the other “newly discovered” Vermeers.  Nobody seemed to question the fact that, although it had been hundreds of years since the last Vermeer had been discovered, suddenly a new piece would appear every 6 months or so – and sold, of course, for a large sum.

Van Meegeran was doing fine until one of his forgeries ended up in the hands of Herman Goering, the number two man in Nazi Germany at the time.  After the war, the Dutch authorities were investigating Nazi collaborators in Holland.  They wanted to know why Van Meegeran was selling national treasures to the Third Reich.  Since the penalty in Holland for this crime was death, it didn’t take long for van Meegeran to claim, hey, I’m not a traitor, I’m a forger.  Look how I fooled Herman Goering.  The experts, of course, were convinced of the authenticity of the paintings by this point, and van Meegeran was forced to prove his painting skills from his jail cell.

I tell these stories not just because I think they are interesting (although I do), but also to illustrate the difference between forgery and fraud.  Would the Italian art students and van Meegeran be guilty of either forgery or fraud had their actions taken place in D.C.?

A person commits forgery in D.C. when he or she (1) makes, draws, or utters (2) a forged written instrument (3) with intent to defraud or injury another person.  To “utter” means to issue, authenticate, transfer, sell, present, display, use of certify.  As Black’s Law Dictionary puts it, it means to put the instrument into circulation in some fashion.  A “written instrument” includes a check, stamp, letter of credit, stock certificate, money order, or traveler’s check.  In a sense, it can be any document or paper that reflects commercial or legal relations between two parties.

The first and third elements have clearly been satisfied in both cases.  The art students and van Meegeran made the phony art pieces and launched them into circulation.  That satisfies the “uttering” requirement.   And they clearly intended to defraud others.

The question thus becomes whether or not the prosecution could make out the third element of the crime; that is, the “written instrument” part.  There is no “written instrument” in the case of the art students.  The statute makes no mention of any physical property in the statute; only documents and papers that represent ownership of property.  In the case of the art students and forgery, the verdict is thus not guilty.

Van Meegeran presents a different story.  The forged paintings themselves do not qualify as “written instruments.”  Like the sculptures in the Modigliani case, they are pieces of physical property that are not covered by the statute.   The difference, however, is that in selling the forged painting to unwitting customers like Goering, van Meegeran would inevitably have passed ownership papers.  That paperwork, fraudulent in claiming authenticity of the property it represented, would qualify as the required “written instrument.”  Van Meegeran would thus be guilty of forgery.

How about fraud?  According to D.C. law, a person commits fraud when he or she (1) engages in a scheme or systematic course of conduct (2) with intent to defraud or to obtain property of another by means of a fraudulent pretense, representation, or promise (3) and thereby obtains property of another or causes another to lose property.  Fraud is, in fact, a broader category of criminal offense that would encompass forgery.

Applying this definition to the Vermeer case, van Meegeran should be found guilty.  His fraudulent scheme was carried out over a multi-year period.  He intended to fool people into thinking that the art they purchased was done by the great Vermeer.  And he made millions of dollars off the forged paintings.

But what about the art students?  Their prank was certainly part of a scheme, and they did intend to fool people.  What’s still missing, however, is the third element.  How did they either obtain property or cause others to lose property?

I suppose you could argue that by eventually exposing the fraudulent scheme they themselves had concocted, the art students rendered the pieces of stone they fashioned into fake Modiglianis worthless in the hands of the people who possessed them.  However, but for the students’ prank, the pieces of stone were worthless to begin with.

You might also argue that, by embarrassing the experts, the art student damaged the experts’ reputations and thus their livelihoods.  But, really, any damage done to the experts’ reputations was self-inflicted.

No.  The art students might be guilty of criminal mischief or some other minor offense.  Maybe they were guilty of having too much time on their hands, and they probably wouldn’t win any model citizenship award.  But they were not guilty of either forgery or fraud.

David Letterman’s recent revelation that he had been having affairs with female members of his staff and his reason for making the revelation – threats by a CBS producer to reveal the indiscretions — bring attention to what I believe are two interesting and often misunderstood crimes:  extortion and blackmail.  While all the news reports I have seen use the term “extortion,” the alleged offense could just as easily fall into the category of blackmail.  (See Washington Post article for sample of coverage.)

While I am not familiar with the laws in either New York or Connecticut or wherever else a potential criminal case could be brought and while the two terms are often used interchangeably, there are in fact several distinctions.

Extortion is an interesting crime in that it combines elements from two other crimes:  theft and assault.   Like theft, extortion involves the wrongful taking of another person’s property.  Like assault, it requires force or the threat of force.

There is another crime which also combines elements from both theft and assault:  robbery.  The difference between extortion and robbery is that robbery requires a threat of immediate force.  Extortion threatens future harm, either physical or economic.

If extortion is one step removed from robbery, then blackmail is two steps removed.  It too involves the wrongful taking of another person’s property.  And it too requires a threat.  The threat in blackmail, however, is not of force of violence, either immediate or in the future.  Instead, blackmail threatens reputation, disgrace, or embarrassment.

So what is the proper term for the CBS producer’s behavior in the Letterman case?  At first glance, a demand for $2 million to forebear writing a screenplay about Letterman’s indiscretions sounds a lot more like blackmail than extortion.  The producer was not threatening force or violence against Letterman; he was threatening to sully Letterman’s marriage and reputation.

At the same time, by common law and at least still in some jurisdictions, extortion also includes an economic component to it.  The threat can be one of economic, as well as physical, injury.  In this case, assuming that disclosure of the affairs could hurt the Letterman’s “brand,” so to speak, then the producer’s demand can properly be considered one of threatening economic injury.  The offense is thus brought within the category of extortion.

Between extortion and blackmail, extortion generally carries the stiffer penalties.  What does this say about our society when our laws consider it a greater offense to harm someone’s economic interests than his or her reputation?  I guess there is not much to be said for the old maxim that a person’s reputation is worth more than anything money could ever buy.