United States v. Weeks , 2012 CAAF LEXIS 275 ( 2012 )

UNITED STATES, Appellee
v.
Kody T. WEEKS, Senior Airman
U.S. Air Force, Appellant
No. 11-0526
Crim. App. No. 37535
United States Court of Appeals for the Armed Forces
Argued January 10, 2012
Decided March 12, 2012
STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and COX, S.J., joined.
Counsel
For Appellant: Major Daniel E. Schoeni (argued); Colonel Eric
N. Eklund, Major Phillip T. Korman, and Major Grover H. Baxley.
For Appellee: Major Scott C. Jansen (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, and Gerald
R. Bruce, Esq. (on brief).
Military Judge: Stephen R. Woody
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Weeks, No. 11-0526/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether Appellant’s guilty
plea to a forgery charge was improvident. We hold that there is
a substantial legal question as to Appellant’s plea because
conduct he admitted did not constitute forgery as a matter of
law: “Telling a lie does not become forgery because it is
reduced to writing.” In re Windsor, [1865] 122 Eng. Rep. 1288,
1291 (Blackburn, J., concurring).
I.
A.
In accordance with his pleas, Appellant was convicted by a
military judge alone in a general court-martial of: one
specification of disobeying a noncommissioned officer, one
specification of violating a no-contact order, one specification
of larceny, and one specification of forgery, in violation of
Articles 91, 92, 121, and 123, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 891, 892, 921, 923 (2006). He was
sentenced to a bad-conduct discharge, confinement for fourteen
months, and reduction to E-1. The convening authority approved
the sentence as adjudged and the United States Air Force Court
of Criminal Appeals (CCA) affirmed. United States v. Weeks, No.
ACM 37535, 2011 CCA LEXIS 351, at *4, 2011 WL 6010895, at *2
(A.F. Ct. Crim. App. Mar. 30, 2011) (unpublished).
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B.
Sometime before September 2006, Appellant’s cousin and his
cousin’s wife (the Barbers) gave him a check as a gift. Using
the account information on those checks, Appellant stole
approximately $50,000 from the Barbers’ account by generating
thirty-one checks to pay off his debts at the electronics
retailer, Best Buy. To generate most of the checks, Appellant
called Best Buy’s automated bill pay system and used his own
name but the Barbers’ account and routing numbers to create
electronic checks that were credited to his balance.
At trial, the military judge explained the elements of
forgery by uttering according to the Military Judges’ Benchbook.
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook ch. 3, ¶ 3-48-2(d) (2002). Appellant told the
military judge he understood the elements and definitions; a
stipulation of fact was admitted into evidence. The stipulation
explained how Appellant created the checks and, in it, Appellant
specifically stated that he “falsely” made them. His answers at
the plea inquiry were substantially similar to the stipulation
of fact. The military judge accepted the pleas, finding they
were knowing and voluntary.
C.
The CCA held that Appellant’s plea to forgery was provident
because he “caused the checks to be falsely made” and because he
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specifically admitted to falsely making and uttering the checks.
2011 CCA LEXIS 351, at *4, 2011 WL 6010895, at *2.
Appellant argues that his guilty plea was improvident
because his conduct did not meet the elements of forgery as
defined in Article 123, UCMJ. Specifically, he argues that he
did not make or alter a signature or writing as required by
Article 123, UCMJ, because he took the money by electronic and
telephonic means. He also argues that even if he made or
altered a signature or writing he did not falsely do so.
The Government argues that Appellant’s plea was provident
because Article 123’s writing requirement is broad enough to
cover his conduct. Citing this Court’s precedent, it also
argues that Appellant falsely made the checks within the meaning
of Article 123, UCMJ. See United States v. Banfield, 37 M.J.
325, 326 (C.M.A. 1993) (finding the accused’s guilty plea to
forgery provident where he signed a fictitious name to thirty-
nine checks and his own name to one).
II.
This Court reviews a military judge’s decision to accept a
plea of guilty for abuse of discretion. United States v.
Inabinette, 66 M.J. 320, 321 (C.A.A.F. 2008). It is an abuse of
discretion for a military judge to accept a guilty plea without
an adequate factual basis to support it. Id. at 321–22. It is
also an abuse of discretion if the ruling is based on an
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erroneous view of the law. Id. at 322. This Court reviews
questions of law, such as whether Appellant “falsely” made a
check or whether something constitutes a “signature or writing,”
de novo. Id. at 321; see also United States v. Goodman, 70 M.J.
396, 400 (C.A.A.F. 2011).
If an accused’s admissions in the plea inquiry do not
establish each of the elements of the charged offense, the
guilty plea must be set aside. United States v. Gosselin, 62
M.J. 349, 352–53 (C.A.A.F. 2006) (“These conclusory responses to
the military judge’s questions . . . are not sufficient for us
to find Gosselin’s plea provident. Conclusions of law alone do
not satisfy the requirements of Article 45, UCMJ, and Rule for
Courts-Martial 910(e).” (citations omitted)).
III.
There are two separate and distinct forgery offenses under
Article 123, UCMJ: (1) forgery by “making or altering,” and (2)
forgery by “uttering.” United States v. Albrecht, 43 M.J. 65,
68 (C.A.A.F. 1995) (“[Article 123, UCMJ] does not set out
alternative ways to commit forgery, in the sense of having to
choose; rather, it specifies two conceptually distinct and
different ways to commit forgery so that, in a given factual
context one or the other or both might be violated.”).
Appellant was charged with forgery by uttering, which has the
following elements:
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(a) That a certain signature or writing was
falsely made or altered;
(b) That the signature or writing was of a nature
which would, if genuine, apparently impose a legal
liability on another or change another’s legal rights
or liabilities to that person’s prejudice;
(c) That the accused uttered, offered, issued, or
transferred the signature or writing;
(d) That at such time the accused knew that the
signature or writing had been falsely made or altered;
and
(e) That the uttering, offering, issuing or
transferring was with the intent to defraud.
See United States v. Pauling, 60 M.J. 91, 93 (C.A.A.F. 2004)
(citing the elements of forgery in the Manual for Courts-
Martial, United States (MCM) pt. IV, ¶ 48.b.(2) (2002 ed.)).
The first element -- whether a signature or writing was falsely
made -- is the element at issue in this case and is dispositive
as to whether Appellant committed either forgery offense.
A.
Appellant argues that his conduct does not violate Article
123, UCMJ, because the statute requires that an actual
“signature or writing” be falsely made. The President has not
updated the Manual to include electronic transactions, and the
United States Navy-Marine Corps Court of Criminal Appeals has
held telephonic transactions cannot constitute forgery. See
United States v. Nimmons, 59 M.J. 550, 552 (N-M. Ct. Crim. App.
2003) (finding a guilty plea improvident where the accused used
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information from a fellow Marine’s check to pay bills via
telephone because neither a writing nor a signature was used in
the telephone transaction).
Unlike the accused in Nimmons, Appellant’s conduct,
although electronic and telephonic in origin, generated tangible
checks that were processed at the victim’s bank -- a fact he
conceded at oral argument.1 Therefore, we find Article 123’s
writing requirement was clearly met in this case because
Appellant’s conduct produced a writing.
B.
Although Appellant made a signature or writing, the crux of
forgery is the false making of the writing. We conclude that
Appellant did not falsely make a writing -- he used his own name
-- and therefore his guilty plea to the forgery charge was
improvident.
Article 123, UCMJ, may seem ambiguous as Appellant’s
actions were clearly “false” in the colloquial sense. However,
falsity in the forgery context is a term of art that developed
in the common law. See Gilbert v. United States, 370 U.S. 650,
655–59 (1962) (discussing the relationship between the common
1
As a general matter, we are skeptical that Appellant’s narrow
construction of Article 123’s writing requirement is correct.
Nothing in the Manual implies that electronic or telephonic
transactions cannot constitute a signature or writing within the
meaning of Article 123, UCMJ. In fact, the Manual takes an
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law and federal forgery statutes). Likewise, to understand the
conception of falsity in Article 123, UCMJ, it is necessary to
examine the role and development of the common law in the
military justice system.
The military justice system incorporated the common law of
forgery in various ways. Even before a general prohibition on
forgery was included in the Articles of War, the narrower
proscription of forgery involving certain claims against the
United States invoked proof as employed in cases of forgery at
common law. William Winthrop, Military Law and Precedents 702
(2d ed., Government Printing Office 1920) (1895). The general
prohibition came in with the 1920 revision of the Articles of
War. Article of War 93 (Act of June 4, 1920, ch. 227, 41 Stat.
759, 805 (1920)). To interpret the provision in the Articles of
War, the 1921 Manual referenced the District of Columbia Code,
which evolved from a number of sources -- including the common
law as it existed in 1776. A Manual for Courts-Martial, United
States Army ch. XVII, sect. X, ¶ 443, at 436 (1921 ed.); History
of the D.C. Code 1-2 (1929), reprinted in D.C. Code at 1–2
(2001). The UCMJ specifically incorporated the common law of
forgery when it was adopted in 1950. Uniform Code of Military
Justice: Hearings on H.R. 2498 Before a Subcommittee of the
expansive view of what may constitute a signature or writing.
See MCM pt. IV, ¶ 48.c.(3), (4).
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House Committee on Armed Services, 81st Cong. 1233 (1949),
reprinted in Index and Legislative History, Uniform Code of
Military Justice (1950) (not separately paginated) (noting that
the “basic common-law elements have been incorporated”); see
also Charles L. Decker et al., Dep’t of Defense, Legal and
Legislative Basis, Manual for Courts-Martial United States 279
(1951) (“In the case of forgery, the Committee adopted almost
verbatim the common law definition . . . .”).
“The essential elements of the common law crime of forgery
are ‘(1) a false making of some instrument in writing; (2) a
fraudulent intent; [and] (3) an instrument apparently capable of
effecting a fraud.’” Vizcarra-Ayala v. Mukasey, 514 F.3d 870,
874 (9th Cir. 2008). In addition to the common law elements,
the crime of forgery by uttering requires that the accused
somehow uttered the false instrument. See A Manual for Courts-
Martial, United States Army ch. XVII, sect. X, ¶ 443, at 438
(1921 ed.) (referencing § 843 of the D.C. Code and the elements
of forgery by uttering). The Manual still references, and this
Court has adopted, these common law elements and definitions.
See MCM pt. IV, ¶ 48.c.(2); United States v. Guess, 48 M.J. 69,
72 (C.A.A.F. 1998) (adopting ¶ 48.c.(2) to interpret Article
123a, UCMJ, 10 U.S.C. § 923a).
Whether something is a “false instrument” at common law,
and therefore under the UCMJ, depends on whether the falsity
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lies in the representation of the facts or in the genuineness of
the execution. Gilbert, 370 U.S. at 658. “Where the ‘falsity
lies in the representation of facts, not in the genuineness of
execution,’ it is not forgery.” Id.; see also Vizcarra-Ayala,
514 F.3d at 875; MCM pt. IV, ¶ 48.c.(2) (“‘False’ refers not to
the contents of the writing or to the facts stated therein but
to the making or altering of it.”); David A. Schlueter et al.,
Military Crimes and Defenses § 6.8[4][a], at 678 (1st ed. 2007)
(“false recitals of fact in a document do not make the document
a forgery”). Therefore, “forgery is not committed by the
genuine making of a false instrument even when made with the
intent to defraud.” MCM pt. IV, ¶ 48.c.(2).
The distinction between forgery and “the genuine making of
a false instrument” largely depends on whether the accused
impersonates another person. The classic example of forgery
occurs when an accused, with the intent to defraud and without
authority, signs someone else’s name “to an instrument having
apparent legal efficacy.” MCM pt. IV, ¶ 48.c.(3). This
signature is falsely made because it purports to be the act of
someone other than the actual signer. Id. Generally, signing
one’s own name to an instrument -- even with the intent to
defraud -- is not forgery.
This does not mean that this type of conduct escapes
criminal punishment. Appellant’s conduct is larceny -- an
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offense of which he was convicted. Additionally, his actions
are similar to conduct charged and upheld by this Court pursuant
to Article 123a, UCMJ. Guess, 48 M.J. at 70.
A couple of analogies help to illustrate what is, and what
is not, forgery. It is not forgery if a person, with the intent
to defraud, signs his own name “as the maker of a check drawn on
a bank in which that person does not have money or credit.” MCM
pt. IV, ¶ 48.c.(2). It is not forgery because, although the
check falsely represents the existence of the account, it does
not misrepresent the actual maker of the check and is therefore
not falsely made. Id. Similarly, if a person signs another’s
name to an instrument but indicates he has the authority to sign
by adding the word “by” with his own name, it is not forgery,
even if no such authority exists. Id.; see also Manual for
Courts-Martial, U.S. Army ¶ 180i (1949 ed.).
In this case, Appellant falsely represented that the
account was his. However, he did not commit forgery because he
did not impersonate the Barbers, hold the checks out as written
by the Barbers, or otherwise misrepresent the actual maker of
the check -- himself. The checks were genuine in the forgery
context because they were what they purported to be, checks
drawn by the actual maker. MCM pt. IV ¶ 48.c.2. In other
words, Appellant used his own name and information in
combination with the actual routing and account number for the
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Barbers’ existing checking account. Thus, Appellant defrauded
but did not forge because his conduct can be compared to
circumstances where a person adds the word “by” with his own
name to indicate he had authority to sign on behalf of the
account holders.
IV.
Appellant’s conduct was not forgery because he did not
falsely make or alter a certain signature or writing.2 The
military judge abused his discretion in accepting Appellant’s
guilty plea to the forgery charge because his acceptance of the
plea was based on an erroneous view of the law. Appellant’s
admissions and conduct could not establish each of the elements
of forgery. Therefore, his guilty plea to the forgery offense
must be set aside. Gosselin, 62 M.J. at 352–53. The findings
of guilty as to the forgery offense are set aside; Charge II and
its specification are dismissed. We affirm the judgment of the
United States Air Force Court of Criminal Appeals as to the
remaining charges and specifications. The judgment of the Court
of Criminal Appeals affirming the sentence is set aside. The
record is returned to the Judge Advocate General of the Air
2
To the extent Banfield suggests that signing one’s own name to
a genuinely made false instrument is forgery, it is incorrect.
See Banfield, 37 M.J. at 328 n.1 (“Even if appellant had signed
his own name to all the travelers checks, his actions might
still be considered forgery. The Circuits have taken different
approaches to resolving this issue.” (citations omitted)).
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Force for remand to the Court of Criminal Appeals for
reassessment of the sentence.
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