Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E. C. Queen, Trial Judge
Rogers, Chief Judge, and Schwelb, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Schwelb
On June 29, 1988, following a bench trial, Yasmeen Abdulshakur was convicted of three counts of welfare fraud in violation of D.C. Code § 3-218.1 (1988). On appeal, she presents three principal contentions for our consideration. The first, which was her sole defense below, was that the Judge should have granted her motion for judgment of acquittal (MJOA) because the evidence was insufficient, according to Ms. Abdulshakur, to prove that she possessed the requisite intent to defraud the District of Columbia. Her second, made for the first time on appeal, is that the District failed to establish that she was not entitled to receive the payments of public assistance which she was convicted of obtaining by fraud. Finally, Ms. Abdulshakur claims in the alternative, also for the first time on appeal, that she could properly be convicted, if at all, of only one crime rather than of three.
The evidence in this case established that for more than six years beginning in May 1979, Ms. Abdulshakur, a college graduate, was employed as a food program specialist by the District of Columbia public schools. On October 16, 1985, she went on maternity leave. Ms. Abdulshakur subsequently applied for public assistance under the AFDC (Aid to Families with Dependent Children) program and received payments under that program for a period of several months. During that period, she also continued to collect, as an employee on leave, exactly the same salary which she had been receiving while she was working full-time.
Recognizing that she would be ineligible for public assistance while she was being paid her full salary, Ms. Abdulshakur simply lied to the Department of Human Services (DHS) and concealed the salary payments which she had been receiving. Specifically, Ms. Abdulshakur executed and presented to DHS representatives three separate documents, each of which contained several separate false representations regarding the continued receipt of her salary and her financial condition generally. The uncontradicted testimony of three DHS social service representatives established that the public assistance payments which Ms. Abdulshakur received would not have been made but for her false representations; obviously, Ms. Abdulshakur was not entitled to collect the same amount of public assistance at full salary as she would have had the right to receive if, as she represented to DHS, she had been receiving no income. Finding all of Ms. Abdulshakur's contentions to be lacking in merit, we affirm each of her convictions.
Ms. Abdulshakur, who had three children at the time of her application, initially applied for assistance under the AFDC program on November 20, 1985, five weeks after she began her maternity leave. On that occasion, her application was processed by Delores Rainey, the first of several DHS representatives with whom Ms. Abdulshakur was to deal. Ms. Rainey testified that she reviewed Ms. Abdulshakur's pay stub and related financial data and entered the information into the computer, sometimes known as the "Mohawk Machine," which is used by her office to determine an applicant's eligibility to receive AFDC benefits. Ms. Rainey explained that Ms. Abdulshakur was ineligible for the claimed benefits because "her income was above the 185 percent needed." *fn1 Ms. Rainey testified that she directed Ms. Abdulshakur to apply for any leave that was available to her from the public school system, and explained that all of Ms. Abdulshakur's resources and income would have to be considered in determining her eligibility for AFDC benefits. According to Ms. Rainey, Ms. Abdulshakur stated that she understood.
Four weeks later, on December 18, 1985, Ms. Abdulshakur applied for public assistance once again. In the application which she completed on this occasion, she made the representations which formed the basis of the first count of the information. On the form, Ms. Abdulshakur stated that she was sick and unable to work, and that she had last worked on October 16, 1985. She represented that she had no money on hand, no checking or credit union account, and no other available resources. She also responded "No" to a question inquiring whether she had "applied for money, other than public assistance, that I have not yet received."
The DHS representative who processed this application, Scott McKnight, testified that he specifically asked Ms. Abdulshakur if she had any income or resources, including checking or savings accounts, insurance policies or automobiles, and that Ms. Abdulshakur responded that she had none. According to Mr. McKnight, Ms. Abdulshakur further told him that she was on leave without pay and that she had received her last payment from the public school system in November 1985.
All of these written and oral representations were false. The prosecution submitted evidence, which was not disputed, that Ms. Abdulshakur had received checks for $612.13 on November 22, 1985 and December 6, 1985, and that these checks were deposited directly in her account at the Teachers Federal Credit Union.
Mr. McKnight testified that, based on Ms. Abdulshakur's representations, all that was required in order to approve her application was documentation that her children were in fact living with her. On December 27, 1985, Ms. Abdulshakur provided Mr. McKnight with the required "living with" statement. She also produced a copy of a letter which she had written on the previous day "To whom it may concern," authorizing the D.C. Public Schools to "use all leave available to me" and requesting that she be advised when "maternity leave begins."
On December 20, 1985, Ms. Abdulshakur had received another check from the public school system, this one for $612.17. She did not report this to Mr. McKnight when she met with him a week later. Deeming himself "bound" to do so "by the rules that we operate under," Mr. McKnight approved Ms. Abdulshakur's application. Mr. McKnight agreed with defense counsel that in determining Ms. Abdulshakur to be eligible, he relied solely on her representation that she had not received any leave pay. Mr. McKnight did require, however, that Ms. Abdulshakur pick up her assistance checks at the DHS office rather than receive them by mail, so that she could report back on the status of her request for leave. *fn2
On February 4, 1986, Ms. Abdulshakur came to the DHS office to pick up her checks for December 1985 and for January 1986. On this occasion, she met with Mr. McKnight for a third time. Mr. McKnight testified that he specifically asked Ms. Abdulshakur if any action had been taken on her request for leave, and that she told him that "nothing had come through on that." In fact, Ms. Abdulshakur had received a check for $612.13 on January 17, 1986. Unaware of Ms. Abdulshakur's continued receipt of her salary, however, Mr. McKnight released the two public assistance checks to her.
Three weeks later, on February 25, 1986, Ms. Abdulshakur was requested by Ms. Regina Wells, another DHS representative, to come into the DHS office again to fill out monthly reports for January and February 1986. On both of these forms, Ms. Abdulshakur reported that she had no checking or savings account, that she received no income from work, and that she also received no "money other than from a job" during January and February. Ms. Wells testified that she explained to Ms. Abdulshakur that she was required to report any other money or anything that the client may have received in the reporting months.
Six days prior to completing these monthly report forms, Ms. Abdulshakur had received a check for $646.01 from the District of Columbia Public Schools. Obviously, Ms. Wells was unaware of this payment and of the several that had preceded it. On March 5, 1986, Ms. Wells released the February check to Ms. Abdulshakur. She testified that she did so "on the information that is given on the monthly reports in front of me," which she concisely summarized as "no resources, no income."
In May 1986, a fourth social service representative, Sondra Phillips, called Ms. Abdulshakur into the office for a re-certification interview. Ms. Phillips testified that she had entered Ms. Abdulshakur's social security number into the Mohawk Machine, which revealed that the client was employed by the District of Columbia government and that she had been paid $4,084.85 in wages during the first three months of 1986. Ms. Phillips questioned Ms. Abdulshakur about this information, but the latter responded that "she didn't know anything about the earnings" and "that the information was incorrect." *fn3
The District then presented the testimony of representatives of the Financial Management Office of the District of Columbia Public Schools and of the Teachers Federal Credit Union. These witnesses established through their testimony and accompanying documentation that Ms. Abdulshakur had received the various checks which we have described in this opinion and that each had been directly deposited in her credit union account.
Ms. Abdulshakur was the sole witness in her own behalf. She stated that the intake coordinator told her on her first visit to DHS in November 1985 that she was "over income," and therefore ineligible for public assistance, because she was entitled to receive another regular paycheck from the public school system. She testified that in accordance with Ms. Rainey's instructions, she again applied for public assistance on December 18, 1985 - the date of her first meeting with Mr. McKnight. She explained that she had reapplied on that occasion, in spite of the fact that she had already received two leave checks, because she believed that these checks were the last which the District of Columbia Public Schools would send her. She acknowledged that although she received another check on December 20, 1985, she did not reveal this to Mr. McKnight when she met with him a week later. She claimed that she did disclose to Mr. McKnight on February 4, 1986 that she had received money from her job, but that he nevertheless released the checks to her and told her they would "straighten it out later."
With respect to the monthly reports for January and February 1986, which she completed on February 25, 1986, Ms. Abdulshakur testified that she asked Ms. Wells whether she should "put the information that I put on the monthly reports the first time I had filled it out [ *fn4] and sent it to them." According to Ms. Abdulshakur, Ms. Wells responded in the affirmative, and Ms. Abdulshakur wrote what she had written on the original forms. She claimed in essence that she completed the monthly report forms in accordance with Ms. Wells' instructions.
Ms. Abdulshakur testified on cross-examination that she did not disclose the receipt of leave checks on the monthly reports "because I wasn't instructed to." Asked by the prosecutor whether she could read, she responded "Yes I can, pretty well." The cross-examination then ended as follows:
Q And isn't it a fact that you have a college degree?
Q And isn't it a fact that you have taken some graduate courses at ...