Masika v. United States

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-CF-274

MOUREEN MASIKA, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(CF2-16046-18)

(Hon. Robert Okun, Trial Judge)

(Submitted September 22, 2021 Decided December 2, 2021)

Donald L Dworsky was on the brief for appellant.

Channing D. Phillips, Acting United States Attorney at the time the brief
was filed, Elizabeth Trosman, John P. Mannarino, Elizabeth Kelley, Jennifer
Mika, and Ethan L. Carroll, Assistant United States Attorneys, were on the brief
for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, * Associate Judge,
and NEBEKER, Senior Judge.

*
Judge Thompson was an Associate Judge of the court at the time of
submission. Although her term expired on September 4, 2021, she will continue to
serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-
1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to
(continued…)
 2

NEBEKER, Senior Judge: Appellant, Moureen Masika, appeals her

conviction for financial exploitation of a vulnerable adult or elderly person

(“FEVA”) by fraud. She challenges the sufficiency of evidence to support fraud

and the jury instructions regarding the fraud offense. We affirm.

I. Background

In 2012, Hugh Jacobsen suffered a stroke and his physical health and

cognitive functions began to decline. Mr. Jacobsen’s son, Simon Jacobsen, hired

two home health aides through Georgetown Home Care to assist with his father’s

care, including his bathing, dressing, and cooking. In 2018, appellant and

Margarette Butler were the two home health aides that cared for Hugh Jacobsen.

(…continued)
perform judicial duties as a Senior Judge and will begin her service as a Senior
Judge on a date to be determined after her successor is appointed and qualifies.
 3

Due to his condition, Hugh Jacobsen was unable to manage his finances.

Simon Jacobsen and his wife directly provided for most of his father’s needs.

They ordered groceries to be delivered to Hugh Jacobsen’s house through

Instacart. If the aides wanted to order carryout food for Hugh Jacobsen, Simon

Jacobsen would place the order himself. His clothes and medications were also

provided for.

If the aides needed to purchase an item for Hugh Jacobsen, they could use a

debit card connected to his BB&T Bank checking account that was kept in a

kitchen cabinet. The card was meant for “small incidental things from time to

time,” such as butter, detergent, and toothpaste, as the aides were not supposed to

leave Hugh Jacobsen alone in the house. Simon Jacobsen instructed the aides that

they needed his permission to use the card, and after making a purchase they were

to put receipts in a jar in the kitchen. He never gave them permission to get cash

using the debit card.

Jonathan Altheimer—an attorney who worked for the family architecture

firm—was responsible for helping Simon Jacobsen manage Hugh Jacobsen’s bills

and monitor his bank statements. In May 2018, he noticed charges on the debit

card statement from CVS Pharmacy that were in larger amounts and more frequent
 4

than usual, with back-to-back transactions on many dates. The CVS transactions

from January 1, 2018, through approximately April 13, 2018, totaled over $3,400.

Mr. Altheimer obtained two receipts from CVS and discovered that each included

a small amount of goods as well as $40 in cash back. He brought this irregular

card activity to Simon Jacobsen’s attention.

Simon Jacobsen confronted both of the home health aides about the charges

towards the end of May 2018. He compared the dates of the transactions to the

aides’ work schedules and learned that appellant was working on the days the

charges were made. When he asked appellant to explain the charges, she said

something to the effect of, “Oh, Simon, this is something we all have to do.” She

also asked him to throw away the receipts.

He again confronted her about the charges on October 4 in a text message

that read, “You owe us $7,000 in stolen credit card cash back charges from CVS.”

Appellant responded, “Simon, I don’t owe you any money. Any money I used on

that card was for your father. I gave that job nothing but my best. It’s not an easy

job. I used my money many times, even have receipts. I don’t buy personal things

from CVS.”
 5

The police investigation identified and obtained eighty-five receipts from

CVS. The items purchased included a home paternity test, makeup, a hair wrap,

and feminine pads. Ms. Butler identified appellant on CVS security camera

footage on several of the dates in question, including at the self-checkout register

on at least three occasions.

Appellant was charged with FEVA by fraud and three counts of second-

degree theft. The case proceeded to a jury trial. After all of the evidence had been

introduced, the trial court discussed the jury instructions with counsel for both

parties. Regarding the instructions for fraud as it relates to the FEVA charge, the

trial court discussed the paragraph from the standard instructions explaining “false

representation,” asking whether it fit the facts of the case and “what statement or

assertion from the evidence” it would refer to. The government suggested

removing the paragraph, to which counsel for appellant stated, “I agree with the

Government.” The trial court stated it would delete the entire paragraph about

false representations, as well as the following paragraph defining “material fact,”
 6

which related back to the definition of false representation. 1 Both parties stated

that they did not object. 2

1
The omitted instructions provide:
A false representation or promise is any statement that
concerns a material or important fact or a material or
important aspect of the matter in question. The term
includes an actual, direct false statement, a half-truth, and
a knowing concealment of a fact that is material or
important to the matter in question. [Name of defendant]
must have known that the statement or assertion was
untrue when he/she made or used it, or have made or
used it with reckless indifference as whether it was, in
fact, true or false …

A material fact is a fact that would be important to a
reasonable person in making a decision about a particular
matter.

Criminal Jury Instructions for the District of Columbia, No. 5.200 (5th ed. 2021).
2
On fraud, the judge instructed the jury:

Fraud means a scheme or systemic course of conduct
with intent to defraud or to obtain property of another by
means of a false or fraudulent pretense, representation, or
promise and thereby obtain property of another or cause
another to lose property. A scheme is any pattern of
behavior calculated to deceive persons of ordinary
prudence and comprehension.

A systematic course of conduct is a pattern of activity. It
need not exist over an extended period of time. But there
must be more than an isolated act.
(continued…)
 7

The jury convicted appellant on all counts. Judge Robert Okun sentenced

her to 180 days of incarceration on each count, all suspended, with three years of

probation with the condition that she not work as a home health aide, and ordered

her to pay $1,800 in restitution.

II. Analysis

Appellant does not challenge her theft convictions. She raises two issues on

appeal regarding the FEVA by fraud conviction. First, she challenges the

sufficiency of evidence of the underlying offense of fraud. Specifically, she argues

(…continued)

It is not necessary for the Government to prove that
Moureen Masika intended to deceive or cheat a particular
person. It is sufficient if you determine that she had an
intent to deceive or cheat any person in order to obtain
property from the elderly person.

To show that the property was lost or obtained as a result
of the scheme or systemic course of conduct, the
Government must prove that but for Moureen Masika’s
scheme or systemic course of conduct, the property
would not have been lost or obtained.
 8

there was insufficient evidence to show she made a “false or fraudulent pretense,

representation, or promise.” She also contends that the jury instruction on FEVA

constituted plain error because it did not include the definitions of “false

representation or promise” and “material fact” to accompany the instruction on

fraud.

A. Sufficiency of the evidence

In reviewing the sufficiency of the evidence, “we view the evidence in the

light most favorable to the government, giving full play to the right of the fact-

finder to determine credibility, weigh the evidence, and draw justifiable inferences

of fact, and making no distinction between direct and circumstantial evidence.”

Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C. 2017) (internal quotations

omitted). “The evidence is sufficient if any rational fact-finder could have found

the elements of the crime beyond a reasonable doubt.” Hernandez v. United

States, 129 A.3d 914, 918 (D.C. 2016). 3

3
Appellant separately argues that the trial court erred in denying her
motions for judgments of acquittal and that there was insufficient evidence to
convict, for the same reason as the first issue she raises. Because we apply the
same standard in reviewing the denial of a motion for judgment of acquittal based
(continued…)
 9

D.C. Code § 22-933.01(a)(3) (2021 Supp.) provides that:

a person is guilty of financial exploitation of a vulnerable
adult or elderly person if the person intentionally and
knowingly … [v]iolates any provision of law proscribing
theft, extortion, forgery, fraud, or identity theft against
the vulnerable adult or elderly person, so long as the
offense was undertaken to obtain the property, including
money, of a vulnerable adult or elderly person.

First-degree fraud requires proof that a person “engage[d] in a scheme or

systematic course of conduct with intent to defraud or to obtain property of another

by means of a false or fraudulent pretense, representation, or promise and thereby

obtain[ed] property of another or cause[d] another to lose property.” D.C. Code §

22-3221(a) (2012 Repl.); Cooper v. United States, 28 A.3d 1132, 1135 (D.C.

2011).

Appellant does not challenge the sufficiency of the evidence that she

engaged in a scheme and systematic course of conduct, had the requisite intent, or

obtained the property of another. Her only challenge to the sufficiency of the

(…continued)
on the sufficiency of evidence, see Nixon v. United States, 730 A.2d 145, 148
(D.C. 1999), asking whether there was sufficient evidence for a reasonable jury to
find guilt beyond a reasonable doubt, we consider these three claims as one.
 10

evidence is that the government failed to prove that she made “a false or fraudulent

pretense, representation, or promise.” Her argument seems to rest on the

assumption that a statement is required to prove fraud.

Appellant relies in part on the common law definition of fraud, which

requires a “false representation,” to support this interpretation. See Bennett v.

Kiggins, 377 A.2d 57, 59 (D.C. 1977). However, under the common law, we have

recognized that “[n]ondisclosure or silence, as well as active misrepresentation,

may constitute fraud.” Id.; see also Pyles v. HSBC Bank USA, N.A., 172 A.3d 903,

908 (D.C. 2017) (“[F]raud may be committed by the omission of material

facts….”); In re Outlaw, 917 A.2d 684, 688 (D.C. 2007) (“Concealment or

suppression of a material fact is as fraudulent as a positive direct

misrepresentation.”) (quoting In re Mitchell, 727 A.2d 308, 315 (D.C.1999)).

Federal courts interpreting the mail fraud statute 4—which served as a model

for the District’s fraud statute and the source of the statutory language appellant

4
The federal mail fraud statute provides, in relevant part: “Whoever,
having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses,
representations, or promises . . . shall be fined under this title or imprisoned not
(continued…)
 11

points to—have similarly made clear that fraud does not necessarily require a

statement. See The District of Columbia Theft and White Collar Crimes Act of

1982, Extended Comments on Bill No. 4-133 before the Committee on Judiciary,

4th Council Period, at 40, 41 (July 20, 1982); United States v. Woods, 335 F.3d

993, 998 (9th Cir. 2003) (rejecting argument that the government “needed to prove

a specific false statement” for mail fraud because “a defendant’s activities can be a

scheme or artifice to defraud whether or not any specific misrepresentations are

involved”) (internal brackets omitted); United States v. Colton, 231 F.3d 890, 898

(4th Cir. 2000) (applying common law meaning of “to defraud” in bank fraud

statute to “include[] acts taken to conceal, create a false impression, mislead, or

(…continued)
more than 20 years, or both.” 18 U.S.C. § 1341 (emphasis added). Congress
amended the statute in 1909 to add the language “or for obtaining money or
property by means of false or fraudulent pretenses, representations, or promises.”
See McNally v. United States, 483 U.S. 350, 357 (1987). “The words ‘to defraud’
commonly refer ‘to wronging one in his property rights by dishonest methods or
schemes,’ and ‘usually signify the deprivation of something of value by trick,
deceit, chicane or overreaching.’” Id. at 358. The addition of the phrase “or for
obtaining money or property by means of false or fraudulent pretenses,
representations, or promises” “does not indicate that Congress was departing from
this common understanding” but rather “simply made it unmistakable that the
statute reached false promises and misrepresentations as to the future as well as
other frauds involving money or property.” Id. at 358-59.
 12

otherwise deceive in order to “prevent the other party from acquiring material

information”) (internal brackets omitted).

Appellant also emphasizes the distinction between fraud and theft, codified

at D.C. Code § 22-3211 (2021 Supp.) to encompass several previously distinct

offenses including larceny by trick, larceny by trust, and false pretenses. Before

fraud was established as a separate offense, frauds were prosecuted under these

theft-related offenses. The District of Columbia Theft and White Collar Crimes

Act of 1982, Report on Bill No. 4-133 before the Committee on Judiciary, 4th

Council Period, at 14 (June 1, 1982). “The gravamen of [the offense of fraud],

which distinguishes it from theft, is engaging in a scheme or systematic course of

conduct to defraud or obtain property of another.” Id. Because the “scheme or

systematic course of conduct” element is not in dispute here, the distinction

between theft and fraud does not help appellant. See Warner v. United States, 124

A.3d 79, 86 (D.C. 2015) (holding “attempted second-degree theft by means of

deception is a lesser included offense of second-degree fraud” because the “pattern

of multiple acts” required for fraud “encompasses the single overt act” required for

attempted second-degree theft and “the ‘intent to defraud or to obtain property of

another by means of a false or fraudulent pretense, representation, or promise’ that

constitutes the mens rea element of fraud encompasses the intent to obtain
 13

another’s property by ‘deception’ and without right that is the corresponding

element of theft”).

Indeed, Blackledge v. United States, in which we affirmed a conviction of

attempted false pretenses, is illustrative here. 447 A.2d 46 (D.C. 1982). One of

the elements of false pretenses was “defendant made a false representation with

knowledge of its falsity and an intent to defraud.” 5 Id. at 49 (emphasis added).

We concluded that by presenting a stolen credit card to purchase gasoline,

“[a]ppellant made an implicit representation that he would render lawful payment,”

which satisfied the false representation element. Id. at 51. Blackledge

demonstrates that a false representation can be made through conduct without

making a specific statement. C.f. Warner, 124 A.3d at 88 (“A false promise need

not be express to support a conviction of attempted theft by deception; it can be

implicit.”).

5
The statute proscribing false pretenses, formerly D.C. Code § 22-1301, has
since been repealed and replaced by the more general theft statute. See Cash v.
United States, 700 A.2d 1208, 1210 (D.C. 1997); The District of Columbia Theft
and White Collar Crimes Act of 1982, Report before the Committee on Judiciary,
at 11.
 14

In Blackledge, we also found the evidence was sufficient for the “jury to

infer appellant’s guilty knowledge that the card was stolen, as well as his

fraudulent intent to use the card” where—even though he claimed he thought he

was authorized to use the card because his friend gave it to him and it belonged to

her uncle—he did not know the cardholder and “made no arrangements to repay

him.” 447 A.2d at 50; see also United States v. Avant, 275 F.2d 650, 653 (D.C.

Cir. 1960) (“[T]he jury is permitted to impute knowledge of the falsity of the

statements of the accused … as a consequence of inferences reasonably drawn

from the facts shown.”).

We hold that the evidence was sufficient for a reasonable jury to find

appellant made a false or fraudulent pretense, representation, or promise to support

the conviction of FEVA by fraud. 6 The evidence showed that appellant used the

debit card when she did not have permission to do so and, moreover, exceeded the

scope of any authorized use by getting cash back at checkout and purchasing items

for her own personal use. Based on the clear limitations on the home health aides’

6
The government also contends there is sufficient evidence to establish
appellant violated D.C. Code § 22-3223 (2021 Supp.), the statute proscribing credit
card fraud. Because we find the evidence sufficient to support the elements of first
degree fraud under D.C. Code § 22-3221(a), we need not reach this argument.
 15

use of the card, which both Simon Jacobsen and Margarette Butler testified to, the

jury could infer that appellant knew she was not authorized to use the card for

these transactions. Like in Blackledge, by presenting the debit card for purchases

at CVS, Ms. Masika made an implied representation that she was authorized to use

it. She further concealed the truth from the Jacobsens by failing to put the receipts

in the jar to account for her purchases, the established procedure for when the

home health aides used the debit card. Thus, her conduct was sufficient to

establish fraud even without a specific statement. The key facts distinguishing

appellant’s FEVA by fraud conviction from the theft convictions is that FEVA by

fraud covered the span of CVS transactions over several months, whereas each

count of second-degree theft applied to a specific transaction.

B. Jury instructions

Appellant argues that the trial court erred by failing to include the definitions

of “false representation or promise” and “material fact” in its jury instructions on

the elements of fraud. Relying on our decision in Butts v. United States, the

government contends that appellant waived this argument by agreeing to the

omission of the specific definitional jury instructions. 822 A.2d 407 (D.C. 2003).

In Butts, we noted that, because “a defendant may not take one position at trial and
 16

a contradictory position on appeal,” we were precluded from considering a claim

of instructional error where “defense counsel not only failed to object, but actually

agreed with the prosecutor during the conference on [the] instructions” being

challenged. Id. at 416; see also Plummer v. United States, 43 A.3d 260, 267, 270

(D.C. 2012) (holding appellant waived claim that trial judge was disqualified

where he had knowledge of the grounds for disqualification and “expressly

declared that he did not object to the judge presiding over the trial”).

Similarly, in this case the trial court specifically discussed the omission that

appellant now claims constituted error with both parties before instructing the jury.

Counsel for appellant did not merely fail to object to the instruction, but rather

affirmatively agreed to the deletion of the paragraph defining “false

representation” and expressly stated no objection to deletion of the paragraph

defining “material fact.” Therefore, we hold that appellant waived this claim of

instructional error. 7

7
In any event, the instruction as given is not plain error, preserved or not.
“Under the test for plain error, an appellant must show (1) error, (2) that is plain,
and (3) that affected [her] substantial rights,” which will nevertheless not warrant
reversal “unless (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Fortune v. United States, 59 A.3d 949, 954
(D.C. 2013) (internal quotations omitted). When reviewing a claim of instructional
(continued…)
 17

III. Conclusion

For the foregoing reasons, we affirm appellant’s conviction.

So ordered.

(…continued)
error, we “examine the instructions in their entirety,” Buskey v. United States, 148
A.3d 1193, 1205 (D.C. 2016) (quoting Jackson v. United States, 653 A.2d 843, 847
(D.C. 1995)) and have recognized that a trial court is not obligated to “defin[e] a
term unless it has a technical legal meaning so different from its ordinary meaning
that the jury, without further explanation, would misunderstand its import in
relation to the factual circumstances.” Griffin v. United States, 850 A.2d 313, 318
(D.C. 2004) (quoting Wilson v. United States, 785 A.2d 321, 328 (D.C. 2001)).
Here, the jury instructions contained every element of first-degree fraud to support
the FEVA offense. The trial court’s decision not to include the definitions of
“false representation or promise” and “material fact,” which largely focus on an
express statement, was reasonable under the facts of the case and in line with the
law of fraud which, as discussed above, does not necessarily require an express
statement. Therefore, we are satisfied that the jury instruction did not constitute
error.