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.