When people meet a criminal defense attorney, they often accost him or her with this question: “How can you live with yourself when you get a guilty person off on a technicality?”
Of course, they usually never ask this question: “How can you live with a system that convicts people for mere technical violations? Like the guy that gets a DUI, even though he was in the back seat of his truck just sleeping, and the car was not even running? The technical notion that he was in ‘actual physical control of his vehicle’ is a mockery of justice!”
As a lawyer, I can assure you that people RARELY “get off on a technicality”, and when they do, it is usually because that so-called technicality was in fact a fundamental Constitutional right that was violated.
But let’s talk about technicalities just for fun.
Recently, I went to a nationwide restaurant to eat. I paid my bill, and noticed a printed message at the bottom of my bill, which I found to be very curious: “Don’t Forget Kids Eat Free Every Tuesday and Saturday 4 p.m. – 10 p.m.” I chuckled – that’s a fraudulent lure! It’s a scheme by golly!
Honestly, I knew that the essence of it simply meant that if I, as adult, bought a meal for myself during that time, the restaurant would also give a very cheap free kid’s meal to one of my kids. I asked the manager if that was indeed what the language meant, and she said yes. But that was NOT what it said.
So, I asked her, “Well, suppose I brought in a busload of kids during those times, had them all order and eat steak, then refused to pay based on that printed language? What would you do? After all, it says kids eat free.”
Her eyebrows crumpled. You see, based on the technical language, the kids should be allowed to eat whatever they wanted absolutely free. She knew it was a bogus lure.
“Ah hah!” I said sarcastically. “Here we have false advertising, which is just a simple way of saying “communications fraud, which can be a felony in Utah! After all, isn’t this part of a scheme? You know, a way of luring people in by making them think the food will be free, then saying, ‘Oops, I am sorry, that only applies to one of your kids, and only if you order an adult meal!'”
Of course, this was tongue in cheek, and I personally don’t think it was fraud – I think it was taking liberty with English.
Think about this: don’t we all see signs on apartment buildings that say “FREE RENT.” Now, just try to get free rent without first obligating yourself to literally thousands of dollars in actual rent. Is this not “communications fraud”? Is this not tricking people out of thousands? Okay, this is going too far, I get it. And, frankly, I think a prosecutor would laugh these cases out of court, but the problem is that they don’t have to because of the way the Utah communications fraud law is written.
And that is the problem with the law. When we apply it technically, the law becomes an ass, as Charles Dickens wrote years ago.
Now, consider the unfortunate case of Richard Jeremy Mattinson, which was handed down by the Supreme Court of Utah just a few years ago. (Utah, 152 P.3d 300).
Mr. Mattinson was charged with communications fraud (Utah Code Annotated § 76-10-1801) or, in the alternative, one count of identity theft. The court said that the charges stemmed from his participation in an alleged scheme to defraud Utah Valley Regional Medical Center (“UVRMC”) out of payment for medical services.”
Now, in Utah, just like in most states, “any person” who has cooked up “any scheme” to get from another “anything of value” by trickery is guilty of:
(a) a class B misdemeanor if less than $500;
(b) a class A misdemeanor if it exceeds $500 but is less than $1,500;
(c) a third degree felony if it exceeds $1,500 but is less than $5,000;
(d) a second degree felony if it exceeds $5,000; and
(e) a second degree felony when the object or purpose of the scheme “is the obtaining of sensitive personal identifying information, regardless of the value.”
Now, how many people do you know that lie? 99% of them? Can it be that low? Have you ever lied? Look, I am not saying it is okay to lie because God Himself has decreed from Heaven that we “shalt not lie”, but, here is the bottom line: everybody in Utah could be violating this law.
How many examples of trickery can you think of where somebody got a little extra from somebody else because of it? Okay, you wanna talk about trickery, how about those hospital bills? Aren’t they just pulling costs for things right out of their you-know-whats? I am convinced they just send people bills just to see if they will pay them without even looking at them. Ask any insurance company about hospital billing techniques and see what kind of a reaction you get.
Okay, now here was the felonious scheme – according to the court. Now, ask yourself as you read it, if – but for the Grace of God – this could not have happened to you or one of your friends.
Mr. Mattinson took his friend, Stevoni Wells, to the emergency room of UVRMC. She was worried about being admitted to the hospital in her own name for fear she would be arrested on outstanding warrants against her. So, Ms. Wells gave the hospital a false name, address, phone number, and social security number.
Now, have you EVER obtained an email address by giving a bogus name? Okay, so it is not good to lie, we all agree on that, but is this who we think of when we think of criminals? Keep reading.
Then, Mr. Mattinson, so that he could stay with Ms. Wells, lied by telling the hospital he was her husband. He also lied to them about his own name. Then, he gave them a bogus maiden name for her. Now, the “scheme” befuddled the Supreme Court, and in a footnote, the Court said this:
“There is some question as to the liability of Mattinson for the hospital bills. Certainly, had he not fraudulently indicated that he was Ms. Wells’ husband, he would not have been permitted to sign the consent form, which also made him liable for the payment of the hospital bill. It is difficult to understand why he would engage in a scheme or artifice to defraud the hospital of payment for services he would not have been liable for absent the scheme.”
Okay, so there you have it, he was an idiot, but a criminal? Come on!
Lesson to be learned: never trick a person for any type of gain whatsoever – even if it is just for a laugh because that may be deemed a thing of value. After all, instead of being labeled a trickster, you could be labeled a felon.