State v. Agosta

Decision Date09 November 2001
Docket NumberNo. 00-387.,00-387.
PartiesSTATE of Vermont v. Michael AGOSTA.
CourtVermont Supreme Court

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.



Defendant Michael Agosta appeals his jury conviction of false pretenses, arguing that the conviction cannot stand because the State failed to prove that he misrepresented a fact affecting the essence of the transaction underlying the prosecution. We reject this argument and thus affirm the conviction.

In February 1997, Roy Buchsbaum, an out-of-state gun collector, obtained a copy of a circular distributed by defendant advertising exotic firearms for sale. The circular indicated that the Agosta Fire-arms Company of Williston, Vermont, was clearing out the last of its inventory and "going out of business." Buchsbaum called defendant at his home in Vermont and began negotiating a price for three items—two fully automatic rifles and a grenade launcher. As a follow-up to their conversation, defendant sent Buchsbaum correspondence bearing the logo of the Agosta Firearms Company, Law Enforcement Division, and indicating that defendant was federally licensed as a class 2 firearms manufacturer and a type 10 manufacturer of destructive devices. In truth, defendant possessed neither license; his class 2 license had expired, and he had withdrawn his previous application for a destructive devices license.

In correspondence, defendant demanded that Buchsbaum send him half of the $8900 sale price before he would send in the paperwork to get title to the three weapons transferred. In response, Buchsbaum sent defendant a check for $4450 in early March 1997. Approximately four weeks later, after unsuccessfully attempting to contact one of his local dealers to find out if the transfers for the rifles had been approved, Buchsbaum telephoned defendant to have him send the rifles to a different dealer. Defendant indicated he could do that, but demanded more money. In early April 1997, Buchsbaum sent defendant another check for $2700.

When two more months passed without the transfers going through, Buchsbaum became concerned and attempted to call defendant, only to discover that defendant's telephone had been disconnected. Eventually, after finding a listing through the Internet, Buchsbaum was able to locate defendant at a different address and telephone number. Over the next six weeks, Buchsbaum was unable to reach defendant by telephone or certified mail at the new address, even though one of defendant's relatives had told Buchsbaum that defendant was staying at that location. Finally, in mid-September 1997, Buchsbaum complained to police that he had been swindled by defendant. Police investigated and spoke to defendant on at least two occasions.

In March 1998, defendant was arraigned on a charge of false pretenses, in violation of 13 V.S.A. § 2002. After the district court denied defendant's motions to suppress certain evidence and dismiss the charge, the case went to trial. Defendant was convicted by a jury and given a suspended two-to-five-year sentence. On appeal, he argues that, in a prosecution for the crime of false pretenses, the State must prove that the alleged misrepresentation went to the essence of the transaction. According to defendant, the State failed to make such a showing, the evidence was insufficient to establish that element of the crime, and the court committed plain error by failing to charge the jury on that point.

Vermont's false pretenses statute, which can be traced back to the eighteenth century in one form or another, imposes criminal penalties upon anyone who "designedly by false pretenses" and "with intent to defraud" obtains from another person money or property exceeding twenty-five dollars in value. 13 V.S.A. § 2002. The basic three elements of § 2002 are that the defendant must have (1) acted with intent to defraud, (2) used a fraudulent devise or artifice, and (3) obtained money or property valued in excess of twenty-five dollars. State v. Foley, 140 Vt. 643, 646, 443 A.2d 452, 453 (1982). While acknowledging slight variations in the laws of different jurisdictions, a leading treatise has defined the statutory crime of false pretenses as "(1) a false representation of a material present or past fact (2) which causes the victim (3) to pass title to (4) his property to the wrongdoer, (5) who (a) knows his representation to be false and (b) intends thereby to defraud the victim." 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.7, at 382-83 (1986). This Court has held that, to obtain a conviction for false pretenses, the State must prove that the victim relied materially, but not necessarily solely, upon the false representation. State v. Bissonette, 145 Vt. 381, 388, 488 A.2d 1231, 1235 (1985).

Defendant's principal argument on appeal is as follows: This Court should look to the common law to interpret § 2002's undefined terms, such as "false pretenses" and "intent to defraud." See Neder v. United States, 527 U.S. 1, 23, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (under principle that Congress intends to incorporate well-settled meaning of common-law terms it uses, court must presume that Congress intended to incorporate materiality of misrepresentation as element of federal mail fraud statute). See generally State v. Dixon, 169 Vt. 15, 18, 725 A.2d 920, 922 (1999) (we assume statutory terminology is consistent with common law). Vermont common law governing the civil tort of fraud requires plaintiffs to demonstrate that the alleged fraudulent misrepresentation affected the essence of the transaction. See Goldman v. Town of Plainfield, 171 Vt. 575, ___, 762 A.2d 854, 856 (2000); Silva v. Stevens, 156 Vt. 94, 102, 589 A.2d 852, 857 (1991); Union Bank v. Jones, 138 Vt. 115, 121, 411 A.2d 1338, 1342 (1980). According to defendant, the alleged misrepresentation concerning his status as a fire-arms dealer did not go to the essence of the transaction with Buchsbaum because he (defendant) could have completed the transaction through an intermediary dealer, notwithstanding his lack of a federal firearms license; therefore, the misrepresentation was immaterial and could not have served as the basis for his conviction on the false pretenses charge.

We find this argument unavailing. Defendant has not cited, nor have we found, any authority suggesting that the statutory crime of false pretenses includes an element requiring the alleged misrepresentation to go to "the essence of the transaction." The only materiality requirement that has been imposed by this Court with respect to § 2002 is the one, noted above, that the victim must have materially relied upon the misrepresentation. Bissonette, 145 Vt. at 388, 488 A.2d at 1235; cf. Neder, 527 U.S. at 22 n. 5, 119 S.Ct. 1827 (citing treatise and Restatement (Second) of Torts § 538 (1977) for proposition that a misrepresentation is material if it reasonably induces victim to act or if maker of misrepresentation has reason to know that it will induce victim to act); Black's Law Dictionary 1016 (7th ed.1999) (material misrepresentation is one in which reasonable person would attach importance in deciding how to act with regard to transaction at issue or to which maker has reason to know that recipient would attach some importance); LaFave, supra, at 386 n. 15, 391-92, 488 A.2d at 1237-38 (noting that misrepresentation must concern material fact to suffice for false pretenses, and citing People v. Noblett, 244 N.Y. 355, 155 N.E. 670, 670-71 (1927), in which court concluded that lessee's false statement to sublessee as to duration of lease was not material misrepresentation because it had no effect on parties' transaction).

In Bissonette, 145 Vt. at 384, 387-88,488 A.2d at 1233, 1235, we upheld a conviction of false pretenses that was based on the defendant falsely telling his elderly victim that the person who supervised her affairs had approved her paying him to fix her roof. While this misrepresentation was material in the sense that it induced the victim to part with her money, and thus was sufficient to support the conviction, see id. at 388, 488 A.2d at 1235, it did not necessarily go to the essence of the transaction. Cf. State v. Jones, 73 N.M. 459, 389 P.2d 398, 402 (1964) (defendant's false statement that he was vice-president of company was material misrepresentation sufficient to convict defendant of false pretenses for scheming to sell worthless stock). If we were to accept the argument raised by defendant here on appeal, defendants in cases such as Bissonette might not be convicted of false pretenses. There is no indication that the Legislature intended to limit the reach of the statute in this manner.

Viewed from this perspective, defendant's letterhead concerning his licensing status falsely represented a material fact and thus qualified for the crime of false pretenses, given Buchsbaum's testimony that (1) he assumed he was purchasing the weapons from a federally licensed dealer; (2) he relied upon defendant's written representation as to that fact; and (3) he would not have given defendant his money and gone through with the transaction had he known that defendant did not in fact have the licenses he claimed he did.

In defendant's view, the alleged misrepresentation in this case would not have subjected him to liability for civil fraud under our case law. That may be so, although the...

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