ANALYSIS OF JANUARY 20, 2009 CAV OPINIONS

 

[Posted January 21, 2009]  The Court of Appeals of Virginia decided two cases by published opinion yesterday; one each in the fields of criminal law and domestic relations

 

Criminal law

The old cry of vendors hawking programs at baseball games was, “Pro-gram!  Getcher pro-gram!  Can’t tell the players without a pro-gram!”  This, of course, was long before the days of widely televised games and the Internet.  Nowadays reasonably attentive fans can indeed tell the players without having to look at a list of names and uniform numbers.  But vestiges of this quaint practice remain.  The Chief Justice of the United States probably could have used a program (or at least a scrap of paper) yesterday when he tried unsuccessfully to lead President Obama in the simple 35-word oath of office.  And in Gheorghiu v. Commonwealth , the appellant’s lawyers probably should have referred carefully to their own “program” when preparing their appeal.

 

The appellant was convicted of a dizzying array of credit card crimes.  The linescore read like this:

 

Credit card theft – 36

Credit card forgery – 8

Identity theft – 5

Credit card fraud – 3

Possession of burglarious tools – 1

 

I’ve done the math for you; that’s 53 counts in all.  The opinion doesn’t specify how much prison time that added up to, but you can safely assume that the appellant’s room and board needs will be taken care of for the foreseeable future with the compliments of the Attorney General.

 

His lawyers set about to regain his liberty (at which time he’d have to feed and clothe himself); they filed a single notice of appeal, in which they listed the various case numbers they were appealing.  That’s perfectly okay; filing a single notice of appeal in cases that were combined for trial is specifically authorized by Rule 5A:6(e).  But their list of case numbers didn’t match up perfectly with the ones in the Clerk’s files.  In some of them, they purported to appeal charges of which the appellant had not been convicted.  In others, more ominously, they omitted the case numbers entirely.

 

I don’t need to tell my seasoned readers this, but newcomers may need to know that filing a timely and proper notice of appeal is jurisdictional.  If you blow that, the appeal is over; do not pass Go, do not collect your $200 legal fee.  The notice was filed on the 27th day after sentencing (three days early, for which I commend the lawyers).  Eight days later, having discovered the omission, they filed an amended notice, listing more case numbers.

 

At this point, the CAV unquestionably has jurisdiction to review the convictions listed in the initial notice, assuming the appellant files a timely and rules-compliant petition.  Just as clearly, it has no jurisdiction to review the other cases, having lost that power at dawn on the 31st day.  In this ruling, the Court of Appeals simply rejects the appeal as it relates to those convictions that weren’t listed in the original notice.  You may think that’s ruthless, but I encourage you to remember that the court had no choice in the matter.  Once a court loses jurisdiction by the passage of a mandatory deadline, it’s like an arrow that’s been shot: You can’t get either one back.

 

The court then turns to the remaining convictions, and affirms on each count.  The first issue considered is that of identity theft, and this produces the only disagreement among the three-judge panel.  The question is whether the prosecution proved that venue for the case was proper in Arlington County, where the appellant was arrested.  The majority (Judge Beales, joined by Judge Haley) finds that at least one element of the crime occurred in that county.  Specifically, it rules that the appellant “possessed the victim’s identity” in Arlington.  How do you possess something intangible, like an identity?  The court rules that possession of the victim’s credit card number is a continuing offense, and “cannot conclude until the information is returned (so that the perpetrator no longer retains it) and the perpetrator’s fraudulent intent to use the information no longer exists.”

 

The dissent (Judge Humphreys) stops short of scoffing at this reasoning, but not that much short.  He writes that this ruling essentially makes the intent to commit a crime an element that satisfies the requirement for venue.  In other words, if you think of committing a crime against property that’s located in Fairfax, while you’re driving through Arlington, then venue is proper in Arlington for your criminal trial.  The dissent distinguishes this offense from a pure larceny offense, where the defendant can be charged with larceny wherever he takes the stolen property.  That’s truly a continuing offense, but Judge Humphreys can’t see how this crime fits that description.

 

In all other respects, the court agrees to affirm the convictions.  It turns aside challenges to allegedly duplicitous jury instructions and even the seizure of papers from the defendant’s jail cell while he was detained before trial.  It notes that one doesn’t have a reasonable expectation of privacy in a jail cell, but goes on to say that the jury never got to see any of those papers, so they could not have contributed to the conviction.  (In effect, this is a retroactive application of a suppression ruling that wasn’t made.  The court finds that the effect is the same as though the papers had been suppressed, since the prosecution didn’t use them.)

 

This opinion is a good, comprehensive analysis of several credit card criminal provisions.  It is foreseeable to me that the case could get further review, as the points raised by the dissent about the relatively new crime of identity theft are serious indictments of the majority’s rationale.

 

Domestic relations

In Cusack v. Cusack , the court takes up the question of from what date, exactly, the trial court can decree payment of the marital share of pension benefits.  The pension in this case is military; husband elected to retire from the Army in 2003 while facing some serious misconduct charges.  (The charges involved possession of child pornography; he eventually spent 36 months in prison.)  Almost a year after the retirement, wife filed a divorce petition; eighteen months after that, the court conducted an evidentiary hearing to rule on her equitable distribution request.

 

The trial court ordered that husband pay wife roughly 70% of his net retirement pay, and he backdated that to the date of retirement.  This latter aspect of the ruling was error, the appellate court rules.  Pursuant to the statutes, the trial court is charged to determine the value of property to be distributed “as of the date of the evidentiary hearing on the evaluation issue.”  Since there was no indication that the husband misappropriated (or dissipated) any part of the pension, the correct date to begin the distribution should be the date of the hearing.  The court lets stand the trial court’s decree that the husband could be personally liable for any sums that the government was “prohibited by law or regulation from paying,” so the earlier ruling may turn out to be a hollow victory for him.