This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Sergio Robert Andrade,


Filed June 5, 2007


Peterson, Judge


Hennepin County District Court

File No. 04060867


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Deborah K. Ellis, 700 St. Paul Building, 6 West Fifth Street, St. Paul, MN  55102 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N



            In this appeal from a conviction of attempted theft by swindle of more than $2,500, appellant, who is an attorney, argues that evidence that he discussed a bribery scheme with a client who was in arrears on appellant’s fees was not sufficient to prove that appellant intended to defraud the client.  Appellant contends that the district court’s findings that the client was in arrears to appellant, and that, although appellant lied to the client about having bribed officials, he intended only to recoup the money the client owed him, were insufficient to support a finding of guilt.  We affirm.


              Appellant Sergio Andrade had been the attorney for the victim of the theft by swindle on numerous matters beginning in 1995 or 1996.  During the spring and summer of 2004, appellant represented the client in negotiations with police related to drug charges against the client.  The client raised the possibility of paying off a judge or police officer to make the matter go away, a suggestion that he had made a number of times over the years, but appellant told the client that that was not possible.  In the summer of 2004, the client owed appellant at least $5,500 in legal fees, although appellant claimed that the amount was $7,500. 

            In July 2004, the client contacted Minneapolis Police Sergeant Luis Carlos Porras and requested a meeting with police without appellant present.  At the meeting, the client reported that appellant had asked him “for $50,000 to pay off Porras’ ‘boss’ boss’” and that appellant had already paid $25,000.  The client understood that if he paid $50,000, no charges would be brought against him. 

            The police contacted FBI Special Agent Andy Mento, who decided to further investigate the matter.  Mento had the client set up a meeting with appellant, and officers prepared the client on topics to address at the meeting and equipped him with an audio wire.  At the meeting with appellant, after discussing various legal matters, the client brought up the matter of the bribe, referring to the $50,000 appellant said he had paid.  Appellant corrected the client, stating that he had paid $25,000 in cash and that an additional $25,000 was due by September 1, 2004.  Appellant confirmed that the $50,000 was for a bribe and not for attorney fees. 

            A second recorded meeting was held on August 27, 2004.  Appellant began the meeting by stating, “I was finally able to convince them to wait for us . . .  or, fifteen on the first, and they are going to wait for the rest.”  When the client asked about the consequences of not paying the bribe in a timely manner, appellant emphasized that the recipient was a powerful person.  The client stated that he had no money to pay toward the bribe, causing appellant to become very upset.  The district court found:

It is evident at this point in the meeting that [appellant] is upset with [the client] and is serious about [the client] paying money to him for the purported bribe.  He effectively closes off the meeting by replying to [the client’s] inquiry as to the power of the bribe recipient by stating, “We’ll know later how powerful he is.” 


            A third recorded meeting was held on September 8, 2004, and the client was supplied with $5,000 in cash for the meeting.  At the meeting, appellant represented that he had paid an additional $15,000 to the person “in charge of all the police of the Drug Task Force” and that a final $10,000 needed to be paid by October 1, 2004.  Appellant explained that he had known the person for a long time and had only asked him for two favors and assured the client that the person would not go back on his word or ask for more money.  The client confirmed that the money he would pay appellant that day would be used for the bribe.  The client raised the possibility of appellant giving him a credit, apparently against the bribe, for amounts he had previously paid for legal fees, and appellant expressed a willingness to review the client’s files and possibly give the client some credits.  Appellant accompanied the client to his truck, where the client gave $5,000 to appellant and again confirmed that the $5,000 would be used for the bribe.  Appellant was arrested after accepting the $5,000.

            The district court found appellant guilty of attempted theft by swindle of property valued at more than $2,500 and not guilty of attempted theft by swindle of property valued at more than $35,000.  In addressing the elements of attempted theft by swindle, after citing appellant’s admissions that he represented to the client that it was necessary to pay a $50,000 bribe and that appellant had made payments of $25,000 and $15,000 to the bribe recipient, the district court stated:

            37. The thrust of [appellant’s] testimony is that:  He went along with the “joke” regarding the bribe as a means of collecting legal fees due him; he desired to [no longer represent the client]; [the client] was not likely to seek him out for future legal work if he owed [appellant] money; and that if [the client] had paid him more than was due for attorney’s fees, he would have returned the excess amount to [the client].  No matter how you dress the dog, the fact remains that [appellant] deliberately made extremely serious and false representations to [the client] in an attempt to obtain money from him.  [Appellant] represented that [the client] needed to pay money to [appellant] so that a bribe could be paid to a public official to avoid prosecution for the 2004 drug charges.  [Appellant] falsely represented that he had paid a total of $40,000 himself to the bribe recipient.  That the purpose of these representations may have been to obtain payment for attorney’s fees owed him by [the client] does not make these deliberate misrepresentations legal or excuse the conduct.  The Court is convinced that these representations went beyond a “joke” on [appellant’s] part and that he intended to use the misrepresentations to obtain money from [the client], who was historically reluctant and slow to pay [appellant’s] fees. . . . [Appellant] intentionally employed artifice and trickery in an attempt to obtain money from [the client].


            . . . .


            39. While the matter of a bribe probably was initiated by [the client], the Court finds beyond a reasonable doubt that [appellant] soon came to recognize that picking up on and advancing the bribery scenario presented a fortuitous opportunity for him to collect attorney’s fees from his client who had historically been, at best, a “slow pay” and would not have paid his legal fees absent the fraudulent scheme.  [Appellant] then proceeded to attempt to obtain funds from [the client].  [Appellant] repeatedly represented that [appellant] needed the money to bribe the public official so that [the client] would avoid criminal prosecution.


            . . . .


            45. Moreover, the Court is satisfied that [appellant] was attempting to obtain more than the $5,000 from [the client] through the bribery ruse.  [Appellant’s] testimony that he would have returned any money paid to him by [the client] that was in excess of his fees is, of course, self serving.  At the same time, however, [appellant] in his testimony appeared to be forthright on this point.  The Court is not convinced that he would not have returned amounts in excess of that due him for attorney’s fees.


            This direct appeal challenges appellant’s conviction.


            Construction of a criminal statute is a question of law, which we review de novo.  State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002).  “A statute must be construed according to its plain language.”  Id. (citing Minn. Stat. § 645.16 (2000)).  The object of statutory interpretation is to determine and give effect to the legislature’s intent.  Minn. Stat. § 645.16 (2006).  “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”  Id.  Penal statutes must be construed strictly with any reasonable doubt concerning legislative intent resolved in favor of the defendant.  State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982).

            Minn. Stat. § 609.52, subd. 2 (2004), states:

            Whoever does any of the following commits theft and may be sentenced as provided in subdivision three:

                        (1) intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property; or . . .

                        (4) by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person[.]


If the value of the stolen property exceeds $2,500, the defendant may be sentenced to prison for up to ten years and fined up to $20,000, and if the value exceeds $35,000, the defendant may be sentenced to up to 20 years in prison and fined up to $100,000.  Id., subd. 3(1)-(2) (2004).  “Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime[.]”  Minn. Stat. § 609.17, subd. 1 (2004).

            Citing Minn. Stat. § 609.52, subd. 2(1), appellant argues that because the district court was not convinced that appellant would not have returned amounts exceeding the attorney fees due him, the court erred in finding that appellant attempted to swindle from the client property worth more than $2,500.  The district found that the client owed appellant at least $5,500 for attorney fees, an amount only $2,000 less than the $7,500 claimed by appellant.  Appellant argues that he had a claim of right to at least $5,500 from the client and that because he did not intend to permanently deprive the client of more than the amount owed for attorney fees, he was not guilty of theft by swindle of property exceeding $2,500 in value.

            Appellant’s argument assumes that the “without claim of right” principle in section 609.52, subd. 2(1), is a principle that applies to all thefts.  That assumption is contrary to the plain statutory language.  Minn. Stat. § 609.52, subd. 2(1), and Minn. Stat. § 609.52, subd. 2(4), are alternative definitions of theft, and the “without claim of right” language is not included in Minn. Stat. § 609.52, subd. 2(4) (2004).  The offense defined by paragraph (4) requires only that property or services be obtained from another person by swindling.

            State v. Lone involved a scheme in which persons falsely represented to homeowners that moisture entering basements indicated structural damage to the home and then attempted to sell to the homeowners a product that would purportedly arrest structural damage.  361 N.W.2d 854 (Minn. 1985).  In affirming the defendants’ convictions of theft by swindle, the supreme court stated:

This court recognized in State v. Ruffin, 280 Minn. 126, 158 N.W.2d 202 (1968), that “swindle” defies precise definition in that no single definition can cover the range of possibilities for the offense.  In attempting to reach a resolution, this court said:  “It seems to us that it may be fairly said that the statute punishes any fraudulent scheme, trick, or device whereby the wrongdoer deprives the victim of his money by deceit or betrayal of confidence.”  Id. at 130, 158 N.W.2d at 205. . . .


            . . . .


. . . As Judge Learned Hand stated in United States v. Rowe, 56 F.2d 747 (2d Cir. 1932):

A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value.  It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him.  That is the evil against which the statute is directed.

Id. at 749.

            The appellant here, in essence, argues that the jury should perform some type of balancing test;  that they consider what the victims gave up in relation to what it was they received, and if what they gave up was greater than what they received, a theft by swindle has taken place.  This does not seem to fit the statutory definition of theft by swindle . . . .

            In theft by swindle, value becomes irrelevant.  In this case all of the victims were cheated, even though some may have a functioning water removal system.  They were cheated because through . . . misrepresentation of the danger of structural damage, the victims lost their chance to bargain on the basis of the true condition of their homes.


Id. at 858-60.

            Appellant’s conduct in this case is analogous to that of the defendants in Lone.  Even though the client owed appellant at least $5,500 for attorney fees, there are ways of settling debts that do not involve payment in full, and the client and appellant could have bargained about paying the fees.  However, as in Lone, appellant’s conduct caused the client to lose his chance to bargain with appellant on the basis of the true facts.

            Appellant argues that this case is distinguishable from Lone because in Lone, the only obligation that the victim owed to the swindler arose out of the swindle transaction, while here, the client had an independent obligation to pay attorney fees to appellant.  This distinction is not legally significant.  The essence of the swindle is that appellant deprived the client of the opportunity to choose whether to use his money to pay legal fees.

            Citing State v. Flicek, 657 N.W.2d 592 (Minn. App. 2003), appellant argues that he lacked an affirmative intent to defraud, which is a required element of theft by swindle.  In Flicek, the names of two city officials with delinquent water accounts were omitted from a published list of delinquent accounts.  The supreme court concluded that the defendants’ conduct did not constitute theft by swindle:

            All of the authorities addressing theft by swindle establish that the essence of a swindle is defrauding another person by an intentional misrepresentation or scheme.  Here, there were no words or actions; there was only a failure to act by not reporting the delinquent accounts.  Although respondents abused their positions of authority by failing to disclose their delinquencies, the facts presented to the grand jury do not constitute probable cause for theft by swindle.


Flicek, 657 N.W.2d at 598 (footnote omitted).

            Unlike the Flicek defendants, appellant committed the affirmative acts of repeatedly representing that the client needed to pay $50,000 to bribe someone to prevent charges from being brought against the client and representing that he had paid $40,000 of his own money for the bribe.  Appellant again argues that he did not commit theft by swindle because he did not intend to retain money in an amount exceeding the attorney fees owed to him.  But this argument again ignores the fact that a claim of right is irrelevant to the crime of theft by swindle.

            The district court’s findings about appellant’s conduct satisfy the statutory definition of theft by swindle.


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.