Also known as: obtain money by false pretenses · obtained money by false pretenses · false pretenses · theft by false pretenses
Written by attorneys — see sources below.
A common law theft offense committed when a defendant obtains title to the property of another by making a knowing false statement about a past or existing fact with intent to defraud the victim. The key element is that the victim intends to convey full ownership rather than mere custody or possession. Courts examine the interest the victim meant to transfer to distinguish this offense from larceny by trick.
Onyx O'Reilly met with an elderly client and claimed a regional bank had already confirmed his private fund's prior market outperformance using similar bonds. No such report existed. Relying on the statement the client signed documents transferring full title to her municipal bonds into the fund. Onyx thereby obtained ownership through the misrepresentation of an existing fact.
Omar Olson told Lena that a title company had already issued a clean report showing all back taxes and liens paid on her apartment building. No report existed and liens remained. Relying on the statement Lena executed and delivered a deed conveying the building to Omar. He thereby acquired title to the property through the false representation of an existing fact.
In 1964, 1966, and 1969 Jerry Helm was convicted in South Dakota of third-degree burglary. In 1972 he was convicted of obtaining money under false pretenses, in 1973 of grand larceny, and in 1975 of third-offense driving while intoxicated. All six offenses were nonviolent and alcohol contributed to each. In 1979 Helm was charged with uttering a no-account check for $100. He told the trial court he had been drinking in Sioux Falls, ended up in Rapid City with more money than he started with, and did not remember the incident, then pleaded guilty. Because he had three prior felony convictions in addition to the principal felony, the South Dakota Circuit Court sentenced him to life imprisonment without possibility of parole under the recidivist statute. The South Dakota Supreme Court affirmed the sentence in a 3-2 decision. After Helm served two years, he asked the Governor to commute the sentence so he could become eligible for parole after serving three-fourths of a fixed term; the Governor denied the request in May 1981. Helm filed a habeas corpus petition in the United States District Court for the District of South Dakota, which denied relief. The United States Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari to consider the Eighth Amendment question.
View caseOwen Ortega falsely stated to startup founders that his former employer had already assigned him rights in a nearly identical codebase. The company still owned the code. Relying on the statement the founders signed documents conveying full ownership of their proprietary tool to Owen. He thereby obtained title through the knowing misrepresentation of a past fact.
In December 1948, Morissette went hunting on a large tract of land in Michigan that the Government had used as a practice bombing range for the Air Force. Spent bomb casings from the range had been dumped into heaps and left exposed to the weather for four years or more. Morissette collected three tons of the casings, flattened them at a nearby farm, and sold them for eighty-four dollars. Morissette worked as a fruit stand operator in the summer and as a trucker and scrap iron collector in the winter. He was an honorably discharged veteran of World War II who had a good reputation among his neighbors. He loaded the casings onto his truck and transported them in broad daylight without any effort to conceal what he was doing. When authorities began an investigation, Morissette voluntarily and candidly told them the whole story, explaining that he believed the casings were abandoned and that he had no intention of stealing them. He was indicted for unlawfully, willfully, and knowingly stealing and converting property of the United States valued at eighty-four dollars in violation of 18 U.S.C. § 641. At trial, the District Court refused to permit Morissette to show that he thought the property was abandoned or to argue that he lacked criminal intent. The court instructed the jury that if it believed the government testimony, Morissette was guilty, and the jury convicted him. The court sentenced him to two months in prison or a fine of two hundred dollars. The Court of Appeals affirmed the conviction. The Supreme Court granted certiorari.
View caseOrion Orlov told an investor that a completed bank due diligence report already confirmed his fund's past performance with similar bonds. No report or history existed. Relying on the statement the investor transferred full title to a portfolio of bonds into the fund. Orion thereby acquired ownership through the false statement of an existing fact.
In the 1970s petitioners James E. Gray, a former Kentucky public official, and Charles J. McNally, a private individual, along with Howard P. "Sonny" Hunt, participated in arrangements involving the Commonwealth's insurance contracts. After Democrat Julian Carroll was elected Governor in 1974, Hunt became chairman of the state Democratic Party and obtained de facto control over selecting the insurance agencies from which Kentucky would purchase its policies. In 1975 the Wombwell Insurance Company agreed with Hunt that, in exchange for continuing as the Commonwealth's agent for a workmen's compensation policy, it would share commissions exceeding $50,000 a year with other agencies designated by Hunt. Between 1975 and 1979 Wombwell funneled $851,000 in commissions to 21 agencies specified by Hunt, including Seton Investments, Inc., a company controlled by Hunt and Gray and nominally owned and operated by McNally, which received approximately $200,000. Gray served as Secretary of Public Protection and Regulation from 1976 to 1978 and as Secretary of the Governor's Cabinet from 1977 to 1979. Prior to his 1976 appointment, Hunt and Gray had established Seton for the purpose of receiving the commission payments, which were used to benefit Gray and Hunt. Pursuant to Hunt's direction, Wombwell also made payments through the Snodgrass Insurance Agency that ultimately went to McNally. Hunt later pleaded guilty to mail and tax fraud charges and received a three-year prison sentence. Petitioners were charged with one count of conspiracy and seven counts of mail fraud; six of the mail fraud counts were dismissed before trial. The remaining mail fraud count was based on the mailing of a commission check to Wombwell by the insurance company that had secured coverage for the State. It alleged that petitioners had devised a scheme to defraud the citizens and government of Kentucky of their right to have the Commonwealth's affairs conducted honestly. The count also charged that petitioners sought to obtain money and other things of value by means of false pretenses and the concealment of material facts. The conspiracy count alleged that petitioners had conspired to violate the mail fraud statute through that scheme. It further alleged that they had conspired to defraud the United States by obstructing the collection of federal taxes. After trial in the District Court the jury convicted petitioners on both the mail fraud and conspiracy counts, and the Court of Appeals for the Sixth Circuit affirmed the convictions in 1986. The Supreme Court granted certiorari in 1986.
View caseOphelia O'Brien told a warehouse operator that a foreign buyer had already executed a bill of sale and deposited funds for diverted electronics. Negotiations remained preliminary with no funds deposited. The operator agreed only to store the crates pending resale. Ophelia thereby obtained mere custody rather than title through the misrepresentation.
Justus Rosemond participated in a drug transaction arranged by Vashti Perez to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. Perez drove to a local park accompanied by Ronald Joseph and Rosemond to complete the exchange. Upon arrival, Gonzales entered the backseat of the vehicle to inspect the marijuana while Painter remained outside. Instead of paying, Gonzales punched the backseat passenger and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers exited the car and fired several shots from a semiautomatic handgun before the three individuals pursued the buyers in their vehicle. A police officer responding to a dispatcher's alert pulled over the car before the pursuers could catch Gonzales and Painter. The Government subsequently charged Rosemond with violating 18 U.S.C. §924(c) by using a gun in connection with a drug trafficking crime or, alternatively, aiding and abetting that offense under 18 U.S.C. §2. Because the identity of the shooter remained disputed, the prosecution pursued both theories at trial: that Rosemond himself fired the weapon or that he aided and abetted Joseph's use of the firearm. At trial, the District Judge instructed the jury on aiding and abetting principles. A person aids or abets if he willfully and knowingly associates himself with the crime and seeks by some act to help make it succeed. The judge further instructed that Rosemond could be convicted of aiding and abetting the §924(c) offense if he knew his cohort used a firearm in the drug trafficking crime and knowingly and actively participated in the drug trafficking crime. Rosemond had proposed an alternative instruction requiring that he intentionally took action to facilitate or encourage the use of the firearm specifically. The jury convicted Rosemond of the §924(c) violation along with other offenses, resulting in a consecutive 120-month sentence for that count. The Tenth Circuit affirmed the conviction, upholding the District Court's aiding and abetting instructions against Rosemond's challenge. The Supreme Court granted certiorari to address the requirements for aiding and abetting liability under these circumstances.
View caseOrson Ochoa entered a partner's office after hours and placed an antique pen set in his bag intending a weekend photo shoot and secret return. No misrepresentation occurred and the partner never intended any transfer. Orson thereby obtained only temporary possession without acquiring title through any false statement of fact.
Anthony Douglas Elonis was an active user of the social networking website Facebook. In May 2010, Elonis’s wife of nearly seven years left him, taking with her their two young children. Elonis began listening to more violent music and posting self-styled rap lyrics inspired by the music under the pseudonym Tone Dougie. The lyrics Elonis posted included graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. This material was often interspersed with disclaimers that the lyrics were fictitious with no intentional resemblance to real persons. Elonis posted a photograph of himself holding a toy knife against a co-worker’s neck with the caption I wish, after which the chief of park security fired him. Elonis posted an adaptation of a satirical sketch in which he substituted his wife for the President. The posting described firing a mortar launcher at her house from the cornfield behind it. After viewing some of Elonis’s posts, his wife felt extremely afraid for her life and obtained a three-year protection-from-abuse order against him. Elonis posted about the order and referenced having enough explosives to take care of the State Police and the Sheriff’s Department. Elonis posted an entry stating he had enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. After park security informed the FBI, agents monitored Elonis’s Facebook activity and visited his house. Elonis then posted Little Agent Lady describing slitting an FBI agent’s throat and detonating a bomb. A grand jury indicted Elonis on five counts of violating 18 U.S.C. §875(c). At trial Elonis requested a jury instruction that the government must prove that he intended to communicate a true threat. The District Court instead instructed the jury that a statement is a true threat when a defendant intentionally makes a statement in a context wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily injury. The jury convicted Elonis on four of the five counts. The Third Circuit affirmed. The Supreme Court granted certiorari.
View caseFalse pretenses requires the defendant to obtain title to the property while larceny by trick requires only custody or possession. Courts determine which offense applies by examining what interest the victim intended to convey when parting with the property.
Supporting sources
Yes. Under traditional common law a false promise about future performance even if made without present intent to perform does not establish false pretenses. The statement must relate to a past or existing fact.
Supporting sources
No. Apparent voluntary consent induced by a knowing false statement of fact does not defeat the offense. The victim's reliance on the misrepresentation satisfies the elements when title passes.
Supporting sources
…fraudulent use of a credit card; in 1969, he was convicted of passing a forged check; finally, in 1973 Rummel was charged with obtaining money by false pretenses, which is also a felony under Texas law. These three offenses were indeed nonviolent. Under Texas' recidivist statute, which provides for a mandatory life sentence upon conviction for a…