06 October 2017

Why Does Anyone in Virginia Get Charged With False Pretenses?

I'm in the middle of a conference where we are discussing insurance fraud. Generally, it's a fairly useful conference discussing a subject which can be complex and hard to prosecute. However, the entire time we've been here they've been obsessive about the primary charge being Obtaining Money by False Pretenses (Va Code 18.2-178). Personally, I think this is an error that proceeds from the fact that people get blinders on them and ignore common law when there is a written statute.

I believe that a much easier prosecution proceeds from Larceny by Trick, a common law form of larceny punished, as most grand larcenies are by Va. Code 18.2-95 (I'm assuming that if an insurance company cares enough to get the ball rolling it will be over $200). Now, when your intrepid author brought this up and another experienced attorney asked me "What about venue?" This was a good question because the situation involved three co-conspirators at least one of which may not have even been at the scene of the claimed incident and therefore had a question as to where he should be charged.

Of course, I flat-footed it. Honestly, I haven't had a defense attorney argue venue for a long time and while the rule for its venue is in the statute for False Pretenses (it can be prosecuted where "(i) any act was performed in furtherance of the offense, or (ii) the person charged with the offense resided at the time of the offense"), I blanked on the general venue statute and made an argument that wasn't the strongest in the world. Consequently, the other prosecutors decided to go with False Pretenses and it probably didn't make much of a difference in the scenario we were working with.

However, as some people have discovered over the years, I have a stubborn streak a mile wide when it comes to arguing legal issues and I'm still convinced that Larceny by Trick should always be a favored charge over False Pretenses.

Larceny by Trick has the same elements of general larceny save one: "the element of trick substitutes for the wrongful taking element required by larceny."  Reid v. Commonwealth, 65 Va. App. 745, 753 (2016). So, larceny by trick would be caption accomplished by the voluntary giving of the money or property to the defendant through any sort of falsity known by the defendant to be false. Another way of thinking about this is that the trespass upon the victim's property is not realized by the victim initially because of a falsity knowingly put forth by the defendant. The remaining elements of asportation and the intent to permanently deprive the victim of the property remain the same as well as the monetary requirement for Grand Larceny ($200).

Obtaining by False Pretense is a species of fraud and therefore has two further limitations that larceny by trick does not. First is the transfer of title. This is a fraud statute instead of a larceny and therefore "an essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant." Shropshire v. Commonwealth, 40 Va. App. 34, 39 (2003). Second is the immediate misrepresentation requirement. For this statute to apply "the false representation [must be] of a past or existing fact." Hubbard v. Commonwealth, 201 Va. 61, 66 (1959). In fact, when monetary payouts are involved the title requirement is discounted and "cases tend to turn on whether the misrepresentation was one of existing fact which makes out false pretenses or some other fraud which makes out larceny by trick."  Reid at 750.  But See Owolabi v. Commonwealth, 16 Va. App. 78 (1993)(case about credit cards as choses in action which had dicta importing the fraud requirements into larceny by trick).

Combining the requirements of the statute and case law, False Pretenses requires that (1) defendant obtained, (2) by false pretense, (2.01) under an immediate misrepresentation (3) money/property, (3.01) that may be subject to larceny, and (3.02) the title thereto.

I'm hard pressed to think up an example that could be charged under False Pretenses that couldn't be charged instead under Larceny by Trick. And why wouldn't you if you could? Under Larceny by Trick you don't have an immediate misrepresentation requirement and no issues about whether title passed. It's cleaner, simpler prosecution.

Additionally, a prosecution under larceny gives at least one collateral advantage. False Pretenses is a fraud the proof of which causes a defendant to be "deemed guilty of larceny." Thus, it doesn't support a conviction of Conspiracy to Grand Larceny under Va Code 18.2-23 and a conspiracy would have to be prosecuted under Va Code 18.2-22 and carry less potential incarceration.

Venue:  And here's where I was a true idiot. Sure, the False Pretense statute sets out its own venue requirements, but the requirements for all other crimes aren't much different. If there's a crime in Virginia and the prosecution is uncertain where exactly it occurred then the default is where the defendant lives, or if not a Virginia resident where he was caught, or if he neither lives in Virginia nor is caught here any jurisdiction where a related crime occurred. Va Code 19.2-244. Consequently, if I know the crime occurred, but I have a hard time nailing down the exact locale of the criminal activity, I just try it where the defendant lives.

Simplest answer in the world and I just flat-footed it. Venue shouldn't provide any problems in prosecuting a Larceny by Trick.

No comments: