CAAF will hear a second oral argument on Tuesday, January 10, in United States v. Weeks, No. 11-0526/AF. The granted issue is: “Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing.”
The issue arises from a plea of guilty of forgery by uttering in violation of Article 123, UCMJ, where the appellant used the account and routing numbers from a check sent to him by his cousin to create electronic checks to pay for purchases at Best Buy via an automated bill pay system.
The AFCCA considered this issue and affirmed the conviction, finding that “the appellant caused the checks to be falsely made and he uttered them. This is not a borderline case, the military judge did not abuse his discretion in accepting the appellant’s guilty plea, and we are ourselves convinced of the appellant’s guilt.” United States v. Weeks, No. ACM 37535, slip op. at 3 (A. F. Ct. Crim. App., March 30, 2011).
Before CAAF, the appellant argues the either a writing or signature is a required element of Article 123, and that even if the appellant made an electronic writing or signature, it was not falsely made.
Arguing that the Code adopts the common law on forgery, the appellant’s brief states that historically:
Forgery was a more serious crime because of the threat it posed to a financial system based largely on blind trust. The technological landscape has changed since Blackstone and Coke, so that photo IDs, PIN codes, instant credit checks, and biometrics now protect the system. Banks and businesses have other means to detect, deter, and defend themselves from the unscrupulous. That may be why Congress has not extended Article 123 to electronic signatures, much less to oral and telephonic transactions.
Appellant’s Br. at 7. The brief continues, arguing that thievery is not necessarily forgery and CAAF should not extend the definition of forgery to include electronic signatures (noting that the N-MCCA has reached this same conclusion in United States v. Nimmons, 59 M.J. 550 (N-M Ct. Crim. App., 2003)).
On the issue of whether an electronic writing or signature was falsely made, the appellant argues that “[he] did not say ‘by’ when he ‘signed’ checks over the telephone, but that is effectively what he did. He purported to have authority to sign the checks, but he did not impersonate the Barbers. It is impersonation that distinguishes forgery from other thievery. Appellant did not impersonate. He stole.” Appellant’s Br. at 9.
The government, in its brief, argues that electronically-created checks are “writings” within the definition of Article 123, and that the appellant committed forgery by uttering when he transferred or offered to transfer the electronically-created checks. Electronic checks are “writings” because the term “siganture” and “writing” are “legal terms which necessarilyincludes signatures and/or writings using every medium imaginable (i.e., fingers in wet cement, crayons, pencils, and electronic checks).” Appellee’s Br. at 12 (citations omitted).
The government also distinguishes the N-MCCA’s opinion in Nimmons, noting that the court “did not say that ‘electronic checks’ cannot qualify as a writing or signature.” Appellee’s Br. at 15. Moreover, the government notes that the transactions in Nimmons were purely electronic, while the transactions at issue in this case resulted in the creation of actual checks by the electronic system.
Finally, the government argues that the fact that the appellant did not lie about his identity has no bearing on false nature of the electronic checks, a fact he admitted to during the plea inquiry.
In a reply brief the appellant argues that forgery by uttering presupposes forgery by making, and that in this case the making and uttering were simultaneous and inseparable. Additionally, he also states that the issue of forgery by electronic media appears to be one of first impression for CAAF.
A military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion, and questions of law related to a guilty plea are reviewed de novo. I anticipate that the oral argument will primarily discuss the question of whether electronic media can constitute a forgery (perhaps with meaningful discussion of the legislative history), and will also consider the significance of the admissions made by the appellant during the plea inquiry.