Yesterday evening on All Things Considered, a Russian engineer complained that Russia’s space program was just building new versions of the same old Soviet hardware. He compared it to a steam locomotive saying, “you equip it with a computer. You equip it with air conditioning. You put a locomotive driver with a university degree in the cabin. And it will still be the same steam locomotive.” The UCMJ really isn’t so different.
Judge Stucky, writing for a unanimous court in United States v. Weeks, No. 11-0526/AF, 71 M.J. 44 (C.A.A.F. Mar. 12, 2012) (CAAFlog case page) (link to slip op.), notes that “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.” Slip op. at 6. Weeks initially seemed, to me and to at least one member of the court, like it was going to be a case about electronic writings, but the appellant used a telephonic bill-pay system to create paper checks that contained his name, but account and routing numbers that were not his. So, rather than a case about the effect of the 21st century on forgery under the UCMJ, Weeks is a history lesson on the common law of forgery as adopted by the UCMJ.
Because the UCMJ incorporated the common law of forgery, the “falsity” of an item “refers not to the contents of the writing or to the facts stated therein but to the making or altering of it… Therefore, forgery is not committed by the genuine making of a false instrument even when made with the intent to defraud.” Slip op. at 10 (citations omitted). Judge Stucky continues:
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 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.
Slip op. at 10-11. The opinion provides numerous analogies. If the Annotated MCM ever gets written, the section on Article 123 should include a warning to read Weeks before charging forgery.
Ultimately, the “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.” Slip op. at 12. CAAF set-aside the forgery conviction and remanded for reassessment of the sentence.
• AFCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument Preview
• Oral argument audio
• Blog post: Argument Recap
• CAAF opinion
• Blog post: Opinion analysis