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.

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

8 Responses to “Opinion Analysis: United States v. Weeks, No. 11-0526/AF”

  1. publius-publicola says:

    CAAF seems stuck in the dark ages of technology.  A fair reading of the forgery statute would permit this.  When the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.  No need to resort to the common law or to cite some 200 year old, smart aleck comment from the British Court of Queen’s Bench.  Let’s not rely on outdated “international law” to resolve a simple domestic matter that is covered by the plain meaning of an unambiguous statute. 

  2. Christian Deichert says:

    Unless/until Congress updates Article 123, seems TCs need to either be going under 123a or using a 134 Clause 3 charge incorporating the elements of 18 U.S.C. 1343 (wire fraud).  N’est-ce pas?

  3. Cloudesley Shovell says:

    It’s not up to CAAF or any other court to reinterpret a criminal statute to fit modern technology.  It’s the legislature’s job to do so.  The “fair reading” is the one that results from strictly construing the statute against the drafter and application of the rule of lenity.  
    This was a larceny case.  Weeks was indeed charged with and pleaded guilty to larceny.  The ultimate sentence would have been the same without the forgery charge, or any other novel 134 spec.  The result of getting all fancy on the charge sheet with unnecessary charges is that a straightforward dive turned into a couple years of resource-wasting appellate litigation.  
    The goal of trial counsel and SJAs is to advise their client (the United States) on how to best use the UCMJ to achieve its purpose–the good order and discipline in the armed forces.  Piling on charges based upon novel or weak legal theories may serve egos (whether legal egos or convening authority egos), but does nothing to advance the cause for which the UCMJ exists, and ultimately does a disservice to the client when it results in unnecessary appellate litigation, as occurred in this case.
    Soapbox complete, carry on.
    Humbly, CS

  4. PhilCave says:

    Interesting.  Christian, I think you have the answer.  Maybe the error was in the charging decision with TC who weren’t sufficiently advanced into the 19th century.  I just completed a contested SPCM where the MJ had to of found that the attempted theft was committed by calling in to the bank and giving the victims account information to pay the accused’s credit card bill – a la Weeks by the look of it.  In the process the victims bank created a “check” electronically which was sent to the credit card company – and er bounced.  The accused was not charged with forgery: but attempted theft, wire fraud, misuse of a government travel card and a 107.  The MJA acquitted on the wire fraud, and misuse of the GTCC.  We’d had some litigation on the wire fraud specification under 134 regarding FSO, and during trial litigation on whether the prosecution had proved the phone calls had crossed state lines.  In the end we did a lot of locomotion for what was likely a decent attempted theft case.  I’m not convinced a wire fraud conviction would of enhanced the sentence.  The evidence of how the attempted theft was committed was admissible under 1001 (and if recollection serves the MJ so ruled in response to a TC request).  My sense is that by over egging the problem we spent twice as long in court as we needed to.

  5. PhilCave says:

    And to note the admiral’s point, less issues on appeal in my case.

  6. PhilCave says:

    And I note this is an Air Force case.

    Admiral, I believe you and I, and others have been here before on the point about charging decisions.

  7. John Harwood says:

    Once again CS hits the nail on the head.  This was a lame charging decision.  Best practice seems to be to reduce the criminality to a single word, in this case, Larceny.  Then make that the charge.  Instead, the gov’t too often takes each and every step taken to advance the criminal enterprise and makes that the basis for a charge.  Which leads, in this case, to a forgery charge that’s basically an add-on to the real crux of the case.  And leads to countless hours of work by the brave folks in the appellate shops.

  8. Christian Deichert says:

    Well, sure, the trial counsel can keep it simple and just charge larceny in cases like this.  (Especially when defense counsel is highly likely to move to have the offenses merged for sentencing purposes under the doctrine formerly known as “multiplicious for sentencing.”)  But, come on, gentlemen, where’s the fun in that?

    The most difficult guilty plea for me as a defense counsel was an attempted murder case; my client had blacked out, stabbed a guy (who then kicked his teeth in), and woke up the enxt morning in the detention cell in Wiesbaden with a funny smile and no memory of what happened.  Trial counsel supported a plea, but oddly, they insisted on intentional aggravated assault, which caused all sorts of headaches during providence.  When they could just have easily have gone with assault with a deadly weapon, which has the exact same maximum punishment as intentional aggravated assault.  Without, of course, the hurdle of having my client articulate how he’s sure he had the intent to do something he didn’t remember doing.  But I digress.

    (In fairness, I’m sure I’d cringe looking at some of my old charge sheets from my first year as a TC.)