Masika v. United States
20-CF-274
| D.C. | Dec 2, 2021Background
- Victim Hugh Jacobsen became physically and cognitively vulnerable after a 2012 stroke; his son Simon and an attorney (Jonathan Altheimer) managed his affairs.
- A BB&T debit card for small incidental purchases by home health aides was kept in the kitchen; aides needed Simon's permission and were to place receipts in a jar; cash withdrawals were not authorized.
- From Jan–Apr 2018, numerous larger-than-usual CVS charges (totaling >$3,400) with repeated $40 cash-back withdrawals appeared on the account; receipts showed goods plus cash back.
- Security footage and co-worker identification placed appellant Moureen Masika at CVS on several charged dates; Butler identified Masika on camera; Masika told Simon the charges were for his father and asked him to discard receipts.
- Masika was tried for FEVA by fraud and three counts of second-degree theft; defense agreed at the instruction conference to omit definitional paragraphs for “false representation” and “material fact”; a jury convicted on all counts and the court sentenced Masika (probation, restitution).
- On appeal Masika challenged (1) sufficiency of evidence that she made a false or fraudulent pretense/representation and (2) the omission of the definitional jury instructions as plain error; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — whether evidence showed a “false or fraudulent pretense, representation, or promise” supporting FEVA by fraud | Masika: Government failed to prove a false statement or representation; fraud requires an express false representation | Government: Fraud can be established by conduct, nondisclosure, or implied representations (unauthorized card use, cash-back, concealment of receipts) | Affirmed — evidence sufficient; implied representation and concealment supported fraud conviction |
| Jury instructions — whether omission of definitions for “false representation or promise” and “material fact” was error | Masika: Omission was plain error and prejudicial | Government: Masika waived any objection by agreeing to omit the paragraphs at the instruction conference | Affirmed — claim waived by Masika’s agreement; in any event no plain error because fraud can be shown by conduct and the instructions otherwise stated elements |
Key Cases Cited
- Blackledge v. United States, 447 A.2d 46 (D.C. 1982) (implicit representations by conduct can satisfy false-pretense element)
- Bennett v. Kiggins, 377 A.2d 57 (D.C. 1977) (nondisclosure or silence may constitute fraud)
- In re Outlaw, 917 A.2d 684 (D.C. 2007) (concealment or suppression of material facts is fraudulent as positive misrepresentation)
- Pyles v. HSBC Bank USA, N.A., 172 A.3d 903 (D.C. 2017) (fraud may be committed by omission of material facts)
- United States v. Woods, 335 F.3d 993 (9th Cir. 2003) (scheme to defraud need not rest on a specific false statement)
- United States v. Colton, 231 F.3d 890 (4th Cir. 2000) (to defraud includes acts to conceal or create a false impression to prevent acquisition of material information)
- McNally v. United States, 483 U.S. 350 (U.S. 1987) (statutory history and common-law understanding of “to defraud”)
- Warner v. United States, 124 A.3d 79 (D.C. 2015) (relationship between fraud and theft offenses; fraud’s scheme element encompasses pattern of acts)
- Butts v. United States, 822 A.2d 407 (D.C. 2003) (defendant waives instructional error by agreeing to instruction wording)