CAAFlog » September 2011 Term » United States v. Weeks

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, 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.

Case Links:
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

Have I mentioned recently how much I love reading Judge Stucky’s opinions?  This is from the opening paragraph of his unanimous opinion for the Court in United States v. Weeks, __ M.J. __, No. 11-0526/AF (C.A.A.F. Mar. 12, 2012): “‘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).”

Tuesday’s oral argument before CAAF in United States v. Weeks, No. 11-0526/AF, presented the following issue:

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.

In response to early questions from the court, the appellant’s counsel agreed that a writing was made in this case (the checks appear in the record of trial), but argued that it was not “falsely made” because it was a genuine making of a false instrument. The checks in this case were not fake checks, but were made by someone who was not authorized to draw from the account. Moreover, in the signature block, the checks were not falsely inscribed with the name of the appellant’s relative who owned the account, but rather said “by retail services, for [the appellant].”

The appellant’s counsel insisted that the crime could have been charged under multiple articles, including Article 121 (larceny) or Article 123a (making, etc., without sufficient funds), but that it is not a forgery in violation of Article 123 because there is no false writing. Further, the appellant’s counsel stated that the law of this matter is clear, but was just improperly applied by the trial military judge when accepting the appellant’s plea.

However, Judge Erdmann and Senior Judge Cox seized on the appellant’s false representation – that he had the authority to draw from the account – as the falsity in the making of the instrument. During discussion of this point, Judge Erdmann disclosed that he thought, from the briefs, that this was a case about electronic writings, not about the falsity of paper writings. I thought the same in my argument preview.

The government’s counsel began his argument by stating that the appellant admitted to sufficient facts to support the finding of guilty, so long as the court resolves the legal question of whether the checks were falsely made in the affirmative. He then stated that the checks were “not genuine” because they purported that the appellant was the owner of, or an authorized party to, the account, which was false. However, he was asked to square this position with the MCM’s discussion that excepts a genuine making of a false instrument from a forgery, and had a difficult time doing so. Ultimately, the court returned to the question of what on the instrument was false, and the government’s counsel returned to the answer of the appellant’s purported ownership of the account.

At one point during the argument, the government’s counsel cited a case that was identified in supplemental citations of authority that the government submitted the day before the argument. This prompted the following statement from Judge Ryan, which begins at 27:40 of the argument audio:

Can I just take this moment to ask about the supplemental citations of authority because – this isn’t really just directed at you, it’s just a general comment for the world – we keep on getting supplemental statements of authority which, in my understanding, in regular federal practice, is for new authority that’s been recently discovered, and we are continually getting the citations of authority the day of or the day prior to arguments, for cases from 1976 and much longer ago, can you explain why that is?

Later, in an exchange that vividly illustrates (what has been described to me by one appellate practitioner as) the need for an integrated “government” position in military justice matters, Judge Stucky asked (at 31:45) if it’s the government’s position that the court should “simply disregard the manual” with respect to this issue. The government’s counsel admitted that this is indeed the government’s position.

When the appellant’s counsel returned for rebuttal, he was immediately questioned by Judge Erdmann about the plain language of Article 123 that addresses “any person who falsely makes any part of any writing which, if genuine, would impose a legal obligation.” He asked why that doesn’t apply in this case, despite the discussion in the MCM; how can someone genuinely make a false instrument. The appellant’s counsel answered that because the appellant stole money that wasn’t his, but he didn’t purport to be someone else while he did it, the writing was a genuinely-made falsehood.

Case Links:
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 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.

Read more »