Opinion
Court of Appeals No. A-10993 Court of Appeals No. A-11033 No. 6207
07-15-2015
DIEU VAN LE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court Nos. 3AN-08-1969 CR, 3AN-04-10358 CR, 3AN-05-3904 CR, 3AN-05-9172 CR, & 3AN-06-11047 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Peter G. Ashman and Michael L. Wolverton, Judges. Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Dieu Van Le appeals his conviction for scheme to defraud, his convictions on seventeen counts of forgery, and his convictions on three counts of second-degree theft — one count for theft of property worth $500 or more, and two other counts based on his theft of two "access devices" (i.e., checkbooks). Le challenges these convictions on several grounds.
Le contends that the superior court should have dismissed the indictment after the parties realized that certain evidence presented to the grand jury (evidence that Le was in possession of cocaine powder when he was arrested) turned out to be mistaken.
Le also contends that the police unlawfully searched a toiletry bag he was carrying at the time of his arrest, and that the superior court should have suppressed all the evidence stemming from this search.
Le further argues that his conviction should be reversed because of an incident that occurred in the middle of his trial: his defense attorney sought permission to withdraw from the case, and the superior court denied this motion. Le argues that the superior court should have granted his trial attorney's mid-trial motion to withdraw.
In addition, Le raises three contentions regarding his sentencing: he argues that the superior court should have delayed his sentencing hearing to allow him to present a psychiatrist's testimony; he argues that his convictions for forgery and theft should merge with his conviction for scheme to defraud; and he contends that his 22-year composite sentence is excessive.
For the reasons explained in this opinion, we conclude that most of Le's claims have no merit. However, we agree with Le that his convictions for theft and forgery should merge with his conviction for scheme to defraud. And because of this, we do not reach Le's claim that his sentence is excessive, since the superior court must re-sentence him.
A more detailed description of the underlying facts
In early 2008, Dieu Van Le stole a checkbook from his girlfriend, Linda Williams, who had an account at the Denali Alaskan Federal Credit Union. Le also stole Lawrence Willoya's checkbook; Willoya also had an account at the Denali Alaskan credit union.
Using the checkbooks he had stolen, Le forged various checks. After forging the checks, Le would approach people (many of them elderly) and tell them different false stories regarding why he needed their help in cashing the checks. These individuals would then take the checks to their banks, cash them, and give the money to Le. As a result, Le fraudulently obtained approximately $8,420.
This conduct formed the basis of the State's indictment in file number 3AN-08-1969 CR. Le was indicted on one count of scheme to defraud, seventeen counts of second-degree forgery (for forging fifteen of Williams's checks and two of Willoya's checks), two counts of second-degree theft (theft of an access device) for stealing Williams's and Willoya's checkbooks, and one count of second-degree theft (theft of property worth $500 or more) for stealing money through the check-cashing scheme.
AS 11.46.600(a)(1).
AS 11.46.505(a)(1).
AS 11.46.130(a)(7).
AS 11.46.130(a)(1).
A jury found Le guilty of all twenty-one counts. The superior court sentenced Le to 10 years to serve for the scheme to defraud conviction, plus an additional 5 years to serve for each count of forgery and theft — all running concurrently with each other, but consecutive to the 10-year sentence for scheme to defraud. Thus, Le's composite sentence in case number 3AN-08-1969 CR was 15 years to serve.
At the time Le committed the offenses we have just described, Le was on probation from several criminal convictions entered against him in 2006: one count of fourth-degree controlled substance misconduct, two counts of second-degree forgery (for forging checks), and one count of second-degree theft for writing bad checks.
Le had received a composite sentence of 11 years' imprisonment with 7 years suspended (i.e., 4 years to serve) for these earlier offenses. Based on Le's commission of the offenses in the present case, the State petitioned the superior court to revoke Le's probation in these earlier cases. The superior court revoked Le's probation and imposed the balance of his suspended time — 7 years. Under the provisions of AS 12.55.127(a), this probation revocation sentence had to be consecutive to Le's 15-year sentence for his current offenses.
Le's challenge to his indictment
When the State took Le's case to the grand jury, the State presented evidence that the police searched a toiletry bag that Le was carrying at the time of his arrest, and that this toiletry bag was found to contain a crack pipe and a bindle of a white powdery substance. When this powder was field-tested, it tested positive for cocaine. Based on this evidence, the grand jury indicted Le on an additional charge of fourth-degree controlled substance misconduct.
But a little over a month after Le was indicted, the State Crime Lab conducted a more rigorous test of the powdery substance and discovered that it was not cocaine (or any other controlled substance). Accordingly, the State dismissed the fourth-degree controlled substance misconduct charge.
Later, Le filed a motion to dismiss the remaining counts of the indictment. He alleged that the police had planted the white powder in his toiletry bag with the fraudulent purpose of pretending that it was cocaine, and that the police gave knowingly false testimony at the grand jury concerning this white powder, so that the grand jurors would be prejudiced against him.
The superior court held a hearing on this motion, and ultimately denied it. The court concluded that it was absurd to think that the police would intentionally plant a non-cocaine white powder in Le's toiletry bag. But the court also ruled that, even if this had happened, the grand jury would surely have indicted Le on the scheme to defraud, forgery, and theft charges anyway — given the "significant and substantial" evidence that Le forged the stolen checks and obtained money by having other people cash them.
In Stern v. State, 827 P.2d 442 (Alaska App. 1992), this Court explained the test that the superior court must use when a defendant challenges an indictment on the basis that improper evidence was presented to the grand jury. The court must first decide whether the remaining evidence was legally sufficient to support the indictment. Id. at 445-46. If so, then the court must assess whether the probative force of that remaining evidence was so weak, and the unfair prejudice of the improper evidence so strong, that it seems likely this improper evidence was the "decisive factor" in the grand jury's decision to indict. Id. at 446.
We agree with the superior court that (1) leaving aside the evidence concerning the white powder, the remaining grand jury evidence was sufficient to support the indictment, and that (2) this remaining evidence of fraud, forgery, and theft was sufficiently strong that the grand jury would have indicted Le even if they had known that the white powder was not a controlled substance.
On this basis, we uphold the superior court's denial of Le's motion to dismiss the indictment.
Le's argument that the superior court should have suppressed all the evidence stemmingfrom the police search of his toiletry bag incident to his arrest
As we have already explained, the police seized a toiletry bag from Le at the time of his arrest. This toiletry bag contained significant evidence against Le, including the two checkbooks belonging to Williams and Willoya.
Le asked the superior court to suppress all of the evidence found in the toiletry bag. In his superior court suppression motion, Le argued that the warrantless search of the toiletry bag was improper because (1) the toiletry bag was not "immediately associated" with his person, and because (2) the search of the bag was not sufficiently contemporaneous with his arrest. The superior court denied this suppression motion.
But now, on appeal, Le contends that the search of his bag was illegal for different reasons. He argues that the search was illegal under the United States Supreme Court's decision in Arizona v. Gant because he no longer had physical access to the toiletry bag at the time it was searched, and because the police had no reason to believe that the bag contained evidence of his crimes.
556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
Because Le did not present his Gant argument in the superior court, he is not allowed to raise it in this appeal.
As this Court explained in Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011), a litigant is not allowed to "invoke the authority of an appellate court to reverse or vacate a trial court's decision" unless the litigant "demonstrate[s] that they gave the trial judge reasonable notice of their request or objection, and gave the judge a reasonable opportunity to respond to that request or objection." But more importantly, the Alaska Supreme Court held in Moreau v. State that, absent singularly egregious circumstances, a defendant is not allowed to argue new theories of suppression on appeal, even under the rubric of plain error. 588 P.2d 275, 279-80 & n. 13 (Alaska 1978).
We accordingly decline to address the merits of Le's suppression argument.
The trial judge's refusal to allow Le's attorney to withdraw from the case in the middle of trial
At trial, Le was represented by a privately retained attorney, Hugh Fleischer. Mr. Fleischer attempted to withdraw in the middle of trial, but the trial judge would not let him. (The judge allowed Fleischer to withdraw after the trial was over, before sentencing.)
On appeal, Le argues that the judge's refusal to let Fleischer withdraw in the middle of trial effectively deprived Le of the assistance of counsel. For the reasons explained here, we reject Le's claim.
(a) Underlying facts
Le hired Fleischer as his attorney at the end of March 2010. (Fleischer was Le's fourth attorney of record.) Le's trial began a little over four months later, on August 9th.
On the second day of trial (August 10th), Fleischer told the court that Le wanted him to step down as counsel. Fleischer explained that he did not have two pieces of evidence that Le wanted to present at trial: (1) a greeting card that Le had received from Linda Williams while he was in jail, asking him to pay her back, and (2) a police transcript of a January 2008 interview with Williams. Fleischer had apparently lost or misplaced the greetingcard, and he could not find the transcript that Le wanted. Because of this, Le wanted to dismiss Fleischer as his attorney.
The trial judge had some questions about these two pieces of evidence. With regard to the purported transcript of a January 2008 interview, the trial judge pointed out that Le was probably mistaken about the date of the interview, since the stolen checks were not reported until February of that year.
With regard to the lost greeting card, the judge admitted that this "[might] be a problem", but the judge was not convinced that the loss of the card "[was] grounds for Mr. Fleischer to step down." The judge noted that Fleischer's withdrawal from the case would not bring back the card, but there were other ways to cure the problem. The judge ruled that, if the card was indeed missing, Le could introduce evidence of the card's existence and contents through witnesses who had seen the card.
The judge then concluded, "I'm not going to permit Mr. Fleischer to withdraw from the case at this point. We have started the [trial]; the jury is sworn; we have begun testimony."
After a short recess, Fleischer returned to court and told the judge, "Mr. Le strongly believes that [I] cannot continue to represent him in this proceeding. He cites a whole panoply of matters, but the fact of the matter is there is a breakdown in the communication ... between myself and him, and I don't believe I can continue to represent Mr. Le in this matter."
At this point, the prosecutor openly opposed Fleischer's motion to withdraw. She argued that Fleischer was doing a better job of communicating with Le than either of Le's last two attorneys, but her main argument was that it was too late for Fleischer to withdraw. The prosecutor told the court: "[W]e are halfway through a trial on [charges] that are two years and six months old now, with numerous elderly victims — some of whom have been deposed, [but others] of whom have not. And I don't believe that the difficulties Mr. Le and Mr. Fleischer may be having this morning [outweigh] the interests in continuing this process."
At this juncture, the judge decided to hold an ex parte hearing to allow Le and Fleischer to freely discuss the problems between them.
When the judge called upon Le to speak, Le began to discuss his disappointment with Fleischer's late filing of certain pre-trial motions, but the judge asked Le to focus on "why you believe Mr. Fleischer should not be your lawyer now." Le then explained that Fleischer had lost the greeting card and the transcript of the January 2008 interview. In response, the judge again told Le that he did not perceive these matters to be sufficiently serious to allow Fleischer to withdraw.
(Fleischer spoke only twice during this ex parte hearing, once to confirm that he did not have the transcript of the January interview, and once to tell the court about a potential plea bargain.)
Le was upset with the trial judge's ruling. He told the judge that he would refuse to stand trial if he was forced to have Fleischer as his attorney. Le declared that he wanted a different lawyer, or to represent himself. But the trial judge responded, "I'm not going to allow [Mr. Fleischer] to withdraw. ... And I'm not going to let you try your own case [because] you've already indicated to [an earlier judge] that you need an interpreter to help with complex legal issues."
Le continued to interrupt the judge, and the judge finally sent Le to an isolation cell, where he could listen to the proceedings. It turned out, however, that there were no further proceedings that day.
There were no further proceedings that day because Le became violent after he was escorted from the courtroom, so the judge decided to simply call a recess for the rest of the day.
The next day, Le's trial resumed with all parties present in the courtroom, including Le.
On the morning of August 12th, the State rested. Before the defense case began, and outside the presence of the jury, Fleischer told the court that Le had again asked him to withdraw as counsel. Fleischer explained that Le continued to feel that there were irreconcilable differences between the two of them, and Fleischer again asked the judge to let him withdraw as Le's counsel.
The trial judge asked Fleischer whether there was "anything new since the last time [the court] denied this request". In response, Fleischer told the court that he and Le had disagreed concerning the scope of Fleischer's cross-examination of one of the police officers, and that there were "various other things that ha[d] ... exacerbated the [problems in their] relationship."
Based on Fleischer's response, the judge held another ex parte hearing. At this second ex parte hearing, the judge again asked Le to explain why he wanted Fleischer removed. Le once more repeated his complaints that Fleischer had lost the greeting card and the transcript of the January interview. The judge once again explained to Le that removing Fleischer from the case "doesn't make the card come back," and the judge discussed different ways to remedy the problem of the missing evidence.
At the end of this second ex parte hearing, the judge again ruled that he would not allow Fleischer to withdraw from the case, and that the trial would go forward. Fleischer remained Le's attorney throughout the rest of the trial.
(b) Why we conclude that the trial judge did not abuse his discretion when he refused to let Fleischer withdraw
On appeal, Le argues that relations between him and Fleischer had deteriorated to the point where their attorney-client relationship was effectively non-existent — thereby depriving Le of his right to counsel under the Sixth Amendment and Article I, Section 11 of the Alaska Constitution.
A defendant who retains private counsel normally has the power to dismiss that attorney and hire another. See McKinnon v. State, 526 P.2d 18, 21 (Alaska 1974) (recognizing a non-indigent defendant's right to hire counsel of their choice).
But there are limits to a defendant's right to dismiss a retained attorney. The Alaska Supreme Court has recognized that, in situations where the attorney's dismissal would necessarily require a continuance of the trial, allowing a defendant to exercise this right unfettered "could well thwart the efficient operation of the courts." Burleson v. State, 543 P.2d 1195, 1200 (Alaska 1975).
In such situations, a trial judge must balance the defendant's right to counsel of choice against the interests of the opposing party, as well as the interest of the public and the judicial system in the prompt disposition of litigation. Id. at 1999. For as the supreme court explained in Burleson, "if all that is needed to secure a continuance is to [announce] on the eve of [a trial or hearing] the desire to change counsel, delays could be secured at will, and the orderly calendaring [of] cases and hearings would be improperly impeded." Id. at 1200.
This Court, too, has noted that there is substantial authority from other jurisdictions holding that a defendant's request to replace their attorney can be denied as untimely simply because it is made just before or during trial — although we have not yet had occasion to adopt (or reject) this line of cases. See Walsh v. State, 134 P.3d 366, 370 (Alaska App. 2006).
In any event, under existing Alaska law, a trial judge has the discretion to refuse to continue a trial to allow the defendant to procure substitute counsel. See Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970). In such instances, we review the judge's decision for abuse of discretion, given the facts of the case. Ibid.
This issue is discussed in Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal Procedure (3rd ed. 2007), § 11.4(c), Vol. 3, pp. 716-17 & n. 64. In particular, the authors comment on the situation where the defendant's expressed reasons for discharging their attorney are not legally adequate:
If the [defendant's] request for a continuance to permit substitution is not justified by good cause ... for discharging [the] current counsel, the trial court then must undertake the process of balancing the defendant's interest in counsel of choice against the public's interest in prompt and efficient administration of justice.Id. at 717.
Here, Le was openly dissatisfied with Fleischer's performance. But even though criminal defendants have the right to competent counsel, they do not have the right to a "meaningful relationship" with their attorney, whether appointed or retained. Morris v. Slappy, 461 U.S. 1, 13-14; 103 S.Ct. 1610, 1617; 75 L.Ed.2d 610 (1983). Moreover, as Le's trial judge repeatedly pointed out, Le's main complaint — the missing physical evidence — could be remedied in other ways.
Another important aspect of the situation is that the request for Fleischer's removal came after Le's trial had already begun. Thus, a substitution of counsel would require a mistrial and significant delay. Le's case had already taken two and a half years to come to trial, and many of the people who were tricked into cashing checks for Le were elderly.
Given the circumstances here, and given the trial judge's findings, we conclude that the trial judge did not abuse his discretion when he refused to let Fleischer withdraw in the middle of trial.
Why we conclude that the superior court did not abuse its discretion when the court refused Le's request for a fourth continuance of the sentencing hearing
Le contends that the superior court committed error by refusing to continue Le's sentencing hearing so that Le could present the testimony of a psychiatrist, Dr. Aron Wolf, regarding the possibility that Le's criminal behavior was the result of a previous head injury and that he was therefore potentially amenable to treatment.
(a) Underlying facts
Le's attorney contacted Dr. Wolf in the months following Le's indictment because Le indicated that he had suffered a head injury in 1996 — an injury that, according to Le, changed his whole personality. Dr. Wolf met with Le before trial (in August 2008), and again after trial (in December 2010), and he filed a report with the superior court in March 2011.
Dr. Wolf concluded that Le's head injury "might very well" have altered Le's mental functioning and impulse control. Dr. Wolf believed it would be useful to conduct further testing, and to see if Le might be responsive to anti-seizure medications. Dr. Wolf also recommended that Le have access to an "AA or 12-step" program, and that Le's neurological issues be addressed while he was incarcerated.
Le was found guilty in August 2010, but his sentencing hearing was delayed for several months because his attorney, Fleischer, filed a renewed motion to withdraw in February 2011. The superior court initially denied this motion, but Le sought reconsideration. At a follow-up hearing in early March 2011, Le told the court that he was dissatisfied with Fleischer for failing to secure copies of Le's medical records from the 1996 injury, so that Dr. Wolf could refer to these records at sentencing.
The superior court ultimately decided to let Fleischer withdraw — but the court's explanation of its decision shows that the court's rationale was to protect Fleischer from further abuse, and that the court remained skeptical as to whether there was any real reason to justify Fleischer's withdrawal:
The Court: I think an appellate court would not approve the court forcing Mr. Fleischer to proceed in these circumstances. I think it's unconscionable. And while it is wholly due to Mr. Le's behavior and wholly based on Mr. Le's obvious efforts to delay this sentencing, ... I don't believe that I can ask Mr. Fleischer to [continue to represent this client].
A new attorney entered an appearance for Le, and Le's sentencing was scheduled for May 6th. But on May 3rd (i.e., three days prior to the scheduled sentencing), Le's new attorney, Lisa Kelley, informed the court that she would not be prepared for sentencing on May 6th. She explained that she had been unable to get in touch with Dr. Wolf. The court responded as follows:
The Court: It's been extremely frustrating ... trying to get this case to the point of sentencing. We have continued this sentencing ... four or five times. The defendant was convicted ... eight and a half months ago. The court granted several delays so that Dr. Wolf could perform the evaluation, the court's had the benefit of Dr. Wolf's written evaluation. I assume the State would not oppose Dr. Wolf testifying telephonically if that's the only way he can appear.
When the parties came to court on May 6th, Dr. Wolf was not available to testify telephonically. When Le's attorney asked for a continuance of the sentencing, the court asked her to describe Dr. Wolf's anticipated testimony. The defense attorney told the court that she did not yet know — and that she would be unable to make a detailed offer of proof for "some time":
Defense Attorney: Dr. Wolf indicated that more medical testing would be necessary before he could give a full rehabilitative assessment [or] treatment assessment [for] Mr. Le. ... I think ... he specifically was going to request to have [an MRI] done on Mr. Le, so he could actually see the specific damage that they needed to treat. And so I think ... getting that done, and being able to see the results of it, would be beneficial to the court. That, unfortunately, could take some time.
After the defense attorney made these remarks, the judge decided to proceed with the sentencing, but the judge told the parties that he would reserve his ruling on whether the sentencing hearing should be extended until a later time to allow Dr. Wolf to testify.
Later in the proceedings, the judge asked the defense attorney why Dr. Wolf had not conducted a neuropsychological test and obtained an MRI before writing his report. Le's attorney replied that she thought Dr. Wolf was not being compensated, and that she was not sure whether and when he ever would be compensated — so "additional work on [this case] wasn't on his calendar."
In response to the defense attorney's remarks, the court asked what point there was in continuing the sentencing hearing:
The Court: So even if I were to continue [the sentencing], the likelihood is [that] there's not going to be any additional evaluation of Mr. Le.
Defense Attorney: ... I have not gone through the full process with my office to get [approval for] an expert. [But] that is something that is available in this case. I could probably tell you by Tuesday of next week whether or not I can get the monies approved.
After receiving further argument from the parties as to whether additional information about Le's 1996 head injury could be expected to have any bearing on the court's sentencing decision, the court denied Le's request for a continuance. The court concluded that even if Dr. Wolf's tentative conclusions were true (that Le suffered a loss of impulse control because of the prior head injury), this would not make a difference to the court's sentencing decision:
The Court: [Le's] behavior in this case, as well as all the behavior I've seen from Mr. Le [in court], is measured; it is considered. He decides how to behave: he ratchets up when things aren't going his way, and he calms down when he gets his way. ... I don't think that's compulsion. I think that [it] might be a character trait or a personality defect or something like that, but it's not compulsion.
(b) Why we conclude that the superior court's refusal to continue the sentencing hearing again was not an abuse of discretion
The parties agree that the supreme court's decision in Salazar v. State, 559 P.2d 66 (Alaska 1976), sets forth the proper standard for assessing the superior court's denial of Le's requested continuance.
Under Salazar, when a party seeks a continuance to obtain a witness's testimony, the trial court should consider: (1) whether the proposed testimony is material to the case, (2) whether the proposed testimony is available from another source, (3) whether the proposed testimony is cumulative, (4) the likelihood that the witness's presence can be secured within a reasonable time, (5) whether the requesting party has acted diligently and in good faith, (6) the adverse consequences of delay to the court and other parties, and (7) the likelihood that the proposed testimony would affect the decision to be rendered. Id. at 72; see also Rogers v. State, 275 P.3d 574, 578 (Alaska App. 2012).
When we evaluate the sentencing judge's decision in Le's case using these factors, we conclude that the judge did not abuse his discretion when he denied the requested continuance.
As we have explained, Le's attorney was not prepared to offer a description of what Dr. Wolf might say if he testified at Le's sentencing — because Dr. Wolf had not yet been formally retained by the defense, and because he apparently did not yet have the full information he would need to perform the proposed evaluation. Thus, the defense attorney could not assure the court that a continuance would produce anything other than the tentative or speculative conclusions contained in the report that Dr. Wolf had already submitted.
Moreover, further delay of the sentencing hearing would have been significantly inconvenient to the court, the State, and the victims — since Le's sentencing had already been continued for several months.
Given the circumstances here, we conclude that the superior court did not abuse its discretion when it denied Le's request for an additional continuance of the sentencing hearing.
See Nielsen v. State, 627 P.2d 1077, 1079 (Alaska 1981) (upholding the lower court's decision to proceed with sentencing despite the defendant's request for a continuance to allow preparation of an additional psychiatric evaluation); Rogers, 275 P.3d at 578-79 (upholding the trial court's refusal to continue the sentencing hearing to allow preparation of a psychiatric evaluation, where the sentencing hearing had already been continued several times); Craig v. State, unpublished, 2002 WL 816798, *5 (Alaska App. 2002); Jackson v. State, unpublished, 1981 WL 605465, *1 (Alaska App. 1981).
Le's convictions for forgery and for theft of property worth $500 or more must be merged with his conviction for scheme to defraud
Le argues that, under the double jeopardy clause of the Alaska Constitution, his seventeen convictions for forgery and one of his second-degree theft convictions (the one alleging theft of property valued at $500 or more) should be merged with his conviction for scheme to defraud. Le did not raise this argument during his sentencing proceedings, but this type of argument may be raised for the first time on appeal. Clifton v. State, 758 P.2d 1279, 1285 (Alaska App. 1988).
The essence of Le's argument is that his scheme to defraud consisted of forging checks and then committing theft by convincing people to present the forged checks to their banks, obtain cash for the checks, and then turn the cash over to Le.
It is true, as the State points out, that Le committed his acts of forgery and theft (obtaining the cash) at different times. But under the State's theory of the case — the theory that the prosecutor argued to the jury — Le's forgery of the checks was an integral part of his scheme to defraud, and the culmination of that fraudulent scheme was when Le convinced people to cash the forged checks at their banks and turn the money over to him.
When offenses rest on the same conduct, courts determine whether these offenses are the "same offense" for double jeopardy purposes by examining the societal interests protected by the different statutes. See Wiglesworth v. State, 249 P.3d 321, 326, 328 (Alaska App. 2011).
The crime of scheme to defraud is aimed at people who "engage in plans to obtain money or property from others by false pretenses or representations." Moore v. State, 740 P.2d 472, 474 (Alaska App. 1987). And in cases such as Le's, the societal purposes served by the scheme to defraud statute overlap to a large degree with the purposes served by the forgery and the theft statutes. The State's theory of prosecution was that Le forged checks and then deceived innocent people into cashing these checks and turning the money over to him. Thus, Le's acts of forgery and his subsequent thefts of the cash were simply the mechanisms by which he accomplished his fraudulent scheme.
As a general matter, the crime of forgery is aimed at preventingor deterring fraud committed by means of a writing. See the Commentary to AS 11.46.500 - 510, found in 1978 Senate Journal, Supp. No. 47 (June 12), pp. 53-54. And with respect to the specific second-degree theft count which charged Le with stealing $500 or more, while it is true that the State did not designate this charge as a "theft by deception", the State's theory of prosecution clearly was that Le fraudulently convinced unwitting people to convert the forged checks into cash for him.
Under Alaska law, there is no separate crime of "theft by deception". This is simply one category of the conduct chargeable as theft under AS 11.46.100. See Cheely v. State, 850 P.2d 653, 658-661 (Alaska App. 1993).
We acknowledge that, in the past, this Court has recognized that the forgery statute protects a somewhat different societal interest: that of preserving the integrity of negotiable instruments. See Alley v. State, 704 P.2d 233, 236 & n. 1 (Alaska App. 1985).
This view of the forgery statutes is most clearly stated in the Tentative Draft's version of the forgery statutes — wording that was based on § 224.1 of the Model Penal Code. The introductory note to Model Penal Code § 224.1 declares that the intent of the provision was "to recognize the special effectiveness of forgery as a means of undermining public confidence in important symbols of commerce and as a means of perpetrating widespread fraud."
American LawInstitute, Model Penal Code and Commentaries (Official Draft, 1962), § 224, Introductory Note at p. 278.
But the legislature's commentary to AS 11.46.500 - 510 takes a different tack: it focuses on the broader problem of fraud, as opposed to the narrower interest in preserving public confidence in the instruments of commerce.
The legislature's commentary to AS 11.46.500 - 510 (forgery in the first, second, and third degrees) declares:
[The statutory definition of] "written instrument" [is intended] to restore the common law principle that forgery can be committed with respect to any writing as well as its modern day equivalents which can be used as a means of defrauding another. ... To commit forgery, the defendant must act with the culpable mental state of "intent to defraud"[, which is defined in AS 11.46.990(11)] as "an intent to injure someone's interest which has value, or an intent to use deception."
Given the facts of Le's case, we conclude that the charges of scheme to defraud, forgery, and theft (that is, the charges based on Le's receipt of cash) were all based on the same conduct and were aimed at the same primary societal interest of protecting people from fraud and deception. We therefore hold that these convictions must merge under the rule announced by our supreme court in Whitton v. State, 479 P. 2d 302, 312 (Alaska 1970).
We reach a different conclusion, however, with respect to Le's two other convictions for second-degree theft — the convictions based on his theft of the two checkbooks (i.e., two "access devices"). Under the facts of Le's case, these two thefts were preparatory crimes that allowed Le to put his scheme to defraud into action. Moreover, the legislative history of this portion of the second-degree theft statute shows that the legislature's primary aim was not to protect property as such, but rather to curb the growing problem of identity theft. We therefor conclude that these two second-degree theft convictions do not merge with Le's other offenses.
See Minutes of the House Judiciary Committee, March 2, 2005 at 2:06 p.m. — discussion of House Bill 131; testimony of Ben Mulligan, staff assistant to Representative Bill Stolze. (Representative Stolze was a primary sponsor of HB 131.) --------
Le's sentence appeal
As we explained toward the beginning of this opinion, Le received a composite term of 22 years' imprisonment for his conviction of scheme to defraud, his seventeen forgery convictions, and his three theft convictions. Le challenges that composite sentence as excessive.
But we have just concluded that Le should not have received twenty-one separate convictions, but only three: a single merged conviction for scheme to defraud, forgery, and the count chargingtheft of property worth $500 or more, plus two additional convictions for second-degree theft based on Le's theft of the two checkbooks. Thus, Le will have to be re-sentenced. We will accordingly defer our consideration of Le's sentence appeal until the superior court re-sentences him.
Conclusion
The judgement of the superior court is AFFIRMED, with the exception that Le's convictions for scheme to defraud, forgery, and theft of property worth $500 or more must merge.
The superior court shall re-sentence Le, and shall report that new sentence to this Court, within 60 days of the issuance of this opinion.
If, after Le is re-sentenced, Le still wishes to pursue a sentence appeal, he shall file a sentencing memorandum in this Court within 30 days after the superior court issues its amended judgement. The State shall then have 30 days to file a responding memorandum.
After we have received the parties' memoranda, we shall resume our consideration of Le's case.