2011 (September Term)
(there are two separate and distinct forgery offenses under Article 123, UCMJ: (1) forgery by making or altering, and (2) forgery by uttering).
(forgery by uttering has the following elements: (a) that a certain signature or writing was falsely made or altered; (b) that the signature or writing was of a nature which would, if genuine, apparently impose a legal liability on another or change another’s legal rights or liabilities to that person’s prejudice; (c) that the accused uttered, offered, issued, or transferred the signature or writing; (d) that at such time the accused knew that the signature or writing had been falsely made or altered; and (e) that the uttering, offering, issuing or transferring was with the intent to defraud).
(appellant’s conduct in using the victims’ checking account information to create electronic checks through telephone calls to a retailer’s automated bill pay system produced a “writing” necessary to support conviction for forgery by uttering; appellant’s conduct, although electronic and telephonic in origin, generated tangible checks that were processed at the victims’ bank).
(appellant, who used the victims’ checking account information to create electronic checks through telephone calls to a retailer’s automated bill pay system, did not falsely make a writing, an element of forgery by uttering, where he used his own name on the checks and did not impersonate the victims, hold the checks out as written by the victims, or otherwise misrepresent the actual maker of the checks; the checks were genuine in the forgery context because they were what they purported to be, checks drawn by the actual maker; in other words, appellant used his own name and information in combination with the actual routing and account number for the victims’ existing checking account; thus, 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; the crux of forgery is the false making of the writing, and in this case, although appellant falsely represented that the account was his, he did not falsely make or alter a certain signature or writing - he used his own name - and therefore his guilty plea to the forgery charge was improvident).
(falsity in the forgery context is a term of art that developed in the common law; the essential elements of the common law crime of forgery are (1) a false making of some instrument in writing; (2) a fraudulent intent; and (3) an instrument apparently capable of effecting a fraud; in addition to the common law elements, the crime of forgery by uttering requires that the accused somehow uttered the false instrument; whether something is a false instrument at common law, and therefore under the UCMJ, depends on whether the falsity lies in the representation of the facts or in the genuineness of the execution; where the falsity lies in the representation of facts, not in the genuineness of execution, it is not forgery; therefore, forgery is not committed by the genuine making of a false instrument even when made with the intent to defraud).
(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; this signature is falsely made because it purports to be the act of someone other than the actual signer; generally, signing one’s own name to an instrument - even with the intent to defraud - is not forgery).
(it is not forgery if a person, with the intent to defraud, signs his own name as the maker of a check drawn on a bank in which that person does not have money or credit; it is not forgery because, although the check falsely represents the existence of the account, it does not misrepresent the actual maker of the check and is therefore not falsely made; similarly, if a person signs another’s name to an instrument but indicates he has the authority to sign by adding the word “by” with his own name, it is not forgery, even if no such authority exists).
2004United States v. Pauling, 60 MJ 91 (forging a drawer’s signature on a check violates Article 123, UCMJ; forging an indorser’s signature on a check also violates Article 123; where both the drawer’s signature and the indorser’s signature are forged on the same check, we hold that the government may properly charge a double forgery as two separate offenses).