THE WEEK’S APPELLATE DEVELOPMENTS

[Posted January 17, 2008] A busier than expected week has left me with a bit of catching up to do. Behold:

ANALYSIS OF JANUARY 15, 2008 CAV OPINIONS

The Court of Appeals handed down two published opinions on Tuesday.

Criminal law

In a very short opinion (just four pages), the court reverses a conviction for credit card fraud in Saponaro v. Commonwealth . Saponaro was a subcontractor who duly received from his general contractor a credit card to make purchases related to their joint construction projects. But Saponaro didn’t stop at the relevant stuff; he also used the card to buy a lot of things strictly for himself, and evidently having nothing to do with the projects. The Commonwealth determined to charge him with credit card fraud.

That turns out to be a mistake. The Court of Appeals rules that one of the indispensable elements of a prosecution for that offense is that the defendant must have obtained something by representing, without the consent of the cardholder, that the defendant is the rightful holder of the card. The trouble with that, as you’ll readily appreciate, is that Saponaro was the holder (in this context, “holder” just means “possessor”) of the card, and he had the cardholder’s consent to use it. That’s not to say that what Saponaro did isn’t criminal; but this code section just doesn’t fit. In order to affirm, the court would have had to add language to the statute (converting “holder” into “holder for a specific purpose”), and courts don’t do that – especially in criminal cases.

The appellate court, in reversing the conviction and dismissing the indictment, suggests that perhaps embezzlement might be the appropriate charge. I don’t know whether the Commonwealth can go back and indict him for that, but the credit card fraud charge is out.

The other case decided Tuesday does involve embezzlement, and this time, it sticks. This time, the cow is far more sacred than just a business credit card; it’s withheld income tax money. The case is George v. Commonwealth , and involves a physician in Luray who somehow neglected to send the Commonwealth its tax money after he held it out of his employees’ paychecks, covering four tax years.

The Commonwealth charged Dr. George under the general embezzlement statute, eschewing reliance upon the specific statute that makes it a crime to swipe tax withholdings. Virtually all attorneys know that when one statute applies generally and another is more specific, the specific provision will govern over the general. Dr. George urged this simple rule of statutory construction upon an unimpressed trial court; on Tuesday, the Court of Appeals is equally unmoved. The court finds that where a given act may be punished using different Code provisions, the choice of how to proceed is left to the prosecutor. This makes sense, because no defendant has the right to decide the manner in which he will be prosecuted.

SUPREME COURT ORDER

The Supreme Court heard arguments just last week in the January session, and the court has already started thinning out the flock. Today the court affirms a criminal case by unpublished order. And in a sense, it’s too bad; Tinsley v. Commonwealth promised the resolution of a very interesting issue. Convicted of rape, animate object sexual penetration, and aggravate sexual battery for what the court describes as “the same single act of sexual intercourse,” Tinsley argued that the same conduct couldn’t constitute those three separate offenses.

Thinking back to the George case above, you can see both sides of this interesting question. Only the prosecutor gets to decide what charges will be brought. But these three charges in particular do seem, on the surface, to entail a substantial degree of redundancy.

Alas; the appeal dies an untimely death today. For although Tinsley raised this vexing challenge in the Court of Appeals, and again in the Supreme Court, he somehow neglected to raise it in the trial court. And that means that heartless butcher,  Rule 5:25 , slaughters another victim, as the court affirms the conviction.

HOLIDAY CLOSINGS

The Supreme Court and Court of Appeals of Virginia will both be closed on Friday and Monday for the Lee-Jackson and King Day holidays. Any pleadings that are due Friday, January 18 through Monday, 21 will instead be due on Tuesday, January 22. The Fourth Circuit will observe the King Day holiday and will be closed Monday, but that court will be open on Friday, since it doesn’t observe purely state holidays.

But there’s more to the story in the Fourth. Pursuant to FRAP 26 (a), there is an automatic extension of time granted when calculating the due date for pleadings, and that relates to state holidays. The rule says that state legal holidays don’t count against you. So even though the Clerk’s Office will be open Friday, and you can file documents there if you want to, you are permitted by the rule to wait until Tuesday to file. (Local Rule 26 requires that you state, “by separate written declaration,” if you’re relying upon a state holiday to claim extra time.) That being said, please accept the following gentle advice, in the calm, loving spirit in which it’s intended: DON’T BE STUPID!! You should never file anything on the last possible day if you can possibly get it filed sooner. Those who play with matches (or deadlines) will inevitably get burned.