Howard David Deiner v. Commonwealth of Virginia ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Alexandria, Virginia
HOWARD DAVID DEINER
MEMORANDUM OPINION * BY
v. Record No. 0424-11-4 JUDGE RUDOLPH BUMGARDNER, III
APRIL 10, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Cary S. Greenberg (Caroline E. Costle; Greenberg Costle, PC, on
briefs), for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Howard David Deiner appeals four convictions of obtaining money by false pretenses,
Code § 18.2-178. 1 He contends the evidence did not prove beyond a reasonable doubt that he
made false representations or that he had the intent to defraud. Concluding the evidence was
sufficient to sustain the convictions, we affirm.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Code § 18.2-178 states,
If any person obtain, by any false pretense or token, from any
person, with intent to defraud, money, a gift certificate or other
property that may be the subject of larceny, he shall be deemed
guilty of larceny thereof; or if he obtain, by any false pretense or
token, with such intent, the signature of any person to a writing,
the false making whereof would be forgery, he shall be guilty of a
Class 4 felony.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
The defendant was admitted to practice law in the District of Columbia in 1984. The
D.C. Bar suspended his license for non-payment of dues from December 3, 2005, until April 13,
2009, which encompassed the entire period of the crimes charged. The defendant was never
licensed to practice law in Virginia.
In 2006 through 2009, the defendant represented four families and their children who
were seeking special education placements pursuant to Code § 22.1-214. Each of the parents
sought an attorney to represent them before the school board and through any administrative or
judicial appeals that became necessary. The parents signed “retainer” agreements in which the
defendant specified he was to represent them as an attorney.
One of the defendant’s retainer agreements stated,
We hereby retain Howard D. Deiner, Esq. as the attorney to
represent us in all matters relating to special education matters . . . .
In consideration of our attorney’s agreement to represent us, we
agree to pay an hourly rate of $275.00 for all legal services
provided by our attorney.
Two other retainer agreements stated,
We hereby retain Howard D. Deiner, Esq., as the attorney to
represent us in education matters relating to our son . . . . In
consideration of our attorney’s agreement to represent us, we agree
to pay $600.00 [or $700.00] for an initial consultation and an
hourly rate of $295.00 [or $285.00] for all legal services provided
by our attorney.
The defendant represented, and retainer agreements noted, that the parents would be
entitled to an award of attorney’s fees if they were successful. The defendant testified he
charged all four families “attorney’s fees,” rather than advocate fees. All the victims testified the
defendant held himself out as an attorney and they sought legal services, not the services of an
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advocate. All the victims testified they paid the defendant for legal representation believing he
was an attorney.
The defendant used letterhead and business cards giving a Virginia address and
identifying himself as an attorney at law. The defendant signed his emails and letters “Howard
D. Deiner, Esq.” His email address used the domain name of “howarddeineresq.com.” When he
appeared at a hearing or filed a brief, the defendant identified himself as “counsel” for the party.
In one case, he did file a complaint in the United States District Court for the Eastern District of
Virginia as counsel for the complainant.
The defendant argues that the evidence failed to prove he made false representations.
In order to sustain a conviction for larceny by false
pretenses, the Commonwealth must prove: “(1) an intent to
defraud; (2) an actual fraud; (3) use of false pretenses for the
purpose of perpetrating the fraud; and (4) accomplishment of the
fraud by means of the false pretenses used for the purpose, that is,
the false pretenses to some degree must have induced the owner to
part with his property.” In this context, the false pretense must be
a representation as to any existing fact or past event. But merely
showing that the accused knowingly stated what was false is not
sufficient; there must also be proof that his intent was to defraud.
Furthermore, the fraudulent intent must have existed at the
time the false pretenses were made, by which the property was
obtained. And in order to determine whether the intent to defraud
existed at the time the act was committed, the conduct and
representations of the accused must be examined, since intent is “a
secret operation of the mind.”
Riegert v. Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 807-08 (1977) (citations
omitted).
Essentially, the defendant maintains that he was a lawyer because he had gone to law
school, had been licensed to practice in the District of Columbia, and could have had his license
reinstated upon payment of dues. While the defendant raises this argument for the first time on
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appeal, and we will not consider an argument not presented to the trial court, 2 we note the
assertion is misleading. In each case the parents retained the defendant because they sought an
attorney who could represent them in court if necessary. Only an attorney licensed to practice in
Virginia could do that. The defendant’s argument does not address the facts; he was never
licensed to practice before the courts in Virginia but represented that he was.
The defendant also asserts the evidence was not sufficient to prove he had an intent to
defraud because Code § 22.1-214 3 permits representation by lay advocates. He argues that since
he could act as a lay advocate without being a licensed attorney, he did not have an intent to
defraud. The defendant further maintains his legal training and experience, and the services
performed, demonstrated that he did not intend to defraud the victims.
This argument disregards what the defendant actually did. The parties did not seek to
employ a lay advocate, and the defendant did not represent himself to the parties as such. They
each, clearly and explicitly, explained they wanted an attorney for services that only an attorney
licensed in this Commonwealth could provide. They contracted and paid for such services, and
thought and expected that was what they were receiving. For example, Kathleen Ujvari testified
that her family thought “we were hiring him as an attorney.”
In this case, the fraud perpetrated by the defendant was holding himself out as an
attorney, knowing the families wanted legal representation, so that he could obtain payment of
the higher fees associated with an attorney rather than an advocate. That the defendant intended
2
“The Court of Appeals will not consider an argument on appeal which was not
presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484,
488 (1998). See Rule 5A:18. The defendant does not argue that we should invoke the
exceptions to that rule for good cause or the ends of justice, and the record does not reflect any
reason to do so.
3
Code § 22.1-214(C) provides: “The parents and the school division shall have the right
to be represented by legal counsel or other representative before such hearing officer without
being in violation of the provisions of § 54.1-3904.”
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to provide the services does not negate the fraud of presenting himself as an attorney at law when
he knew that he was not licensed to practice law. The defendant perpetuated the fraud through
his letterhead, email address, filings, retainer agreements, and by entering appearances as
“counsel” to the families. Indeed, the defendant conceded at trial that it was a fair inference
from the facts to assume he was an attorney.
“The crime is complete when the fraud intended is consummated by obtaining the
property sought by means of the false representations . . . .” Quidley v. Commonwealth, 221 Va.
963, 966, 275 S.E.2d 622, 625 (1981) (citation omitted). This fraud was complete when the
defendant falsely represented he was an attorney and the families paid him his legal fees. It was
a false representation of an existing fact, not a promise of future performance. How well the
defendant performed services for the family does not alter the fact that he was not what he held
himself out to be.
The false pretense the defendant perpetrated on these families caused each of them to pay
the defendant. The trial court had sufficient evidence that the defendant obtained money from
each of the families through the false pretense that he was an attorney licensed to practice in
Virginia and that he had the requisite intent to defraud at the time the false representations were
made. “[T]he judgment of the trial court shall not be set aside unless it appears from the
evidence that such judgment is plainly wrong or without evidence to support it.” Code
§ 8.01-680. Accordingly, we affirm each of the four convictions.
Affirmed.
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