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Harris v. District of Columbia

April 8, 2010


Appeal from the Superior Court of the District of Columbia (CDC 947-05) (Hon. Zinora M. Mitchell-Rankin, Trial Judge).

The opinion of the court was delivered by: KRAMER,Associate Judge

Argued December 16, 2009

Before KRAMER and THOMPSON, Associate Judges,and NEBEKER, Senior Judge.

Vernell Harris appeals from her conviction on four counts of welfare fraud. She contends that her prosecution was time-barred by the three-year statute of limitations and that her convictions were multiplicitous. We agree that one of the charges against her was multiplicitous and vacate accordingly. We do not, however, agree that her prosecution was time-barred, and we thus affirm the other convictions.

I. Factual Background

Vernell Harris received food stamps from the Department of Human Services ("DHS") in the District of Columbia from April 1993 through February 2003, as well as Temporary Assistance for Needy Families ("TANF") benefits (government-provided benefits for persons with minor children) from May 1999 through February 2003. In order to obtain these benefits, Ms. Harris was required to file "re-certification forms" with DHS every six months and verify that she remained a District of Columbia resident by providing DHS with either an identification card or a letter from a roommate. Ms. Harris's benefits were temporarily discontinued in February 2000 after a letter was returned to DHS with a postal service sticker notifying of a forwarding address in Maryland. Ms. Harris, however, was able to reinstate her benefits by providing DHS with documentation of her District of Columbia residency, specifically a letter from a purported roommate in the District of Columbia and a utility bill for their residence. As a result, Ms. Harris's benefits continued uninterrupted until they were discontinued on February 28, 2003.*fn1

At trial, the government presented three witnesses and produced several documents to establish that Ms. Harris fraudulently claimed District of Columbia residency for the purposes of District of Columbia benefits while she was a Maryland resident from May 2001 through February 2003. The witnesses included two DHS employees who had met with Ms. Harris between 2001 and 2003, as well as the apartment manager for one of Ms. Harris's Maryland residences. The documents produced included employee records and tax filings for two Maryland companies that employed Ms. Harris. Ms. Harris provided at least three different Maryland addresses to these employers between May 2001 and February 2003.

After a four-day jury trial, Ms. Harris was convicted of four counts of welfare fraud, including Count 1 - welfare fraud "by means of failing to disclose her change of residence" from May 16, 2001 through February 28, 2003; Count 4 - welfare fraud "by means of falsely stating her residence information" on March 28, 2002; Count 5 - the same charge as Count 4 but for conduct on June 6, 2002, and Count 6 - unlawful food stamp usage between May 16, 2001, and February 28, 2003.*fn2 Ms. Harris was sentenced to four consecutive sentences, including a sentence of one year of incarceration, execution of sentence suspended as to all but 15 days, for each of three counts, plus 180 days of incarceration with all but 15 days suspended for the fourth count, and five years of supervised probation.

II. Legal Analysis

Ms. Harris contends that the trial court committed reversible error by failing to sua sponte strike some of the charges from the charging information as multiplicitous and barred by the three-year statute of limitations. We agree that one of the charges was multiplicitous, but we do not find any of the charges to be barred by the applicable statute of limitations.

A. The Charge for Continuous Failure to Disclose Change of Address was Multiplicitous

Ms. Harris argues the charges against her violated the Double Jeopardy Clause of the Fifth Amendment because the government charged her with welfare fraud as both a series of individual crimes and as one continuing offense. We agree. Because "[a]n illegal sentence - including a sentence for a conviction that should have merged with another conviction to avoid a double jeopardy violation - may be challenged at any time," Carter v. United States, 957 A.2d 9, 22 n.19 (D.C. 2008) (internal citation omitted), we remand for vacation of one of the multiplicitous charges and convictions despite the fact that Ms. Harris failed to object to the charging information at trial.*fn3

We have held that the commission of a single fraud, i.e., making one misrepresentation to DHS, which results in the receipt of multiple payments or benefits can be charged only as a single ongoing offense. Blackmone v. United States, 151 A.2d 191, 195 (D.C. 1959).*fn4 We also have held, however, that a person can be charged with multiple fraud offenses where he or she makes multiple false representations to the government. Abdulshakur v. District of Columbia, 589 A.2d 1258, 1267 (D.C. 1991).*fn5 Thus, it is not inherently problematic for a person charged with welfare fraud to be charged with both a continuing offense and a series of individual offenses, so long as the offenses are based on different conduct and thus constitute "separate criminal acts."

With this framework in mind, we agree that Count 1 was multiplicitous with Counts 4 and 5.*fn6 All three of these charges were based on violations of D.C. Code ยง 4-218.01 ...

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