We previously discussed the curious case of Dayna Morales, a lesbian waitress a tip because they refused to support her “lifestyle.” An ex-Marine and server at Gallop Asian Bistro in Bridgewater, N.J., produced a receipt that said “I’m sorry but I cannot tip because I don’t agree with your lifestyle and how you live your life.” People flocked to the restaurant to leave big tips for Morales and she received national acclaim for donating the tips to the Wounded Warrior charity. She was later challenged by the couple who produced a receipt showing that they did in fact tip her, never wrote anything on the receipt and actually support gay rights. Former friends also came forward to allege that Morales is a habitual liar who was discharged from the Marine Corps for failing to go to training. She has since been suspended from her job at the restaurant. We explored the possible criminal and civil liability that Morales could face if she had in fact lied. I noted that Morales’ promise to give the windfall of sympathetic tips to Wounded Warriors was a good idea to avoid allegations of fraud. However, new local coverage reports that Wounded Warriors has no record of the donations, though she may have made the donations under a different name or in a different locality.
If Morales has not given the tips to charity, it could be too late to avoid a fraud charge if a prosecutor was determined to bring a case. A belated donation could be viewed as tactical rather than charitable.
The state law allows for charges for theft by deception:
§ 2C:20-4. Theft by deception
A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:
a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
b. Prevents another from acquiring information which would affect his judgment of a transaction; or
c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.
That would seem potentially relevant. In addition, since people came from New York and other states (a fact acknowledged by both the restaurant and Morales) that could be federal jurisdiction for a fraud claim. Since she used a computer and other devices to spread the allegation, wire fraud could be charged:
18 USC § 1343 – Fraud by wire, radio, or television
Current through Pub. L. 113-36. (See Public Laws for the current Congress.)
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
In addition there could be collateral charges if records were tampered with include a charge under this provision:
2C:21-4. Falsifying or tampering with records
a. Except as provided in subsection b. of this section, a person commits a crime of the fourth degree if he falsifies, destroys, removes, conceals any writing or record, or utters any writing or record knowing that it contains a false statement or information, with purpose to deceive or injure anyone or to conceal any wrongdoing.
There could also be a charge for forgery:
2C:21-1 – Forgery and Related Offenses
a.Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1)Alters or changes any writing of another without his authorization;
(2)Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
(3)Utters any writing which he knows to be forged in a manner specified in paragraph (1) or (2).
“Writing” includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, access devices, and other symbols of value, right, privilege, or identification, including retail sales receipts, universal product code (UPC) labels and checks. This section shall apply without limitation to forged, copied or imitated checks.
Notably, if all of these allegations by friends and the couple are false, Morales has an exceptionally strong defamation claim. Given their anonymity, the couple would have difficulty establishing damages for defamation. There is also the question of the restaurant which benefited by a significant increase in business due to the story and is being accused of failing to fully investigate the claim before publicly supporting the story.
What is clear is that, if Morales lied about both the receipt and the donation, she could have crossed the line into criminal territory. There is no indication of a criminal investigation despite the overwhelming news coverage.