Forgery. MCM, pt. IV, 48; UCMJ art. 123

Elementstest1 125 (Side 125)

  1. Forgery: making or altering.
    1. That the accused falsely made or altered a certain signature.
    2. 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; and
    3. That the false making or altering was with the intent to defraud.
  2. Forgery: uttering.
    1. That a certain signature or writing was falsely made or altered;
    2. 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;
    3. That the accused uttered, offered, issued, or transferred the signature or writing;
    4. That at such time the accused knew that the signature or writing had been falsely made or altered; and
    5. That the uttering, offering, issuing or transferring was with the intent to defraud.

Two distinct types: making or altering, and uttering. MCM, pt. IV, 48b.

  1. Falsely making checks is a separate offense from uttering them; these actions are not alternative methods of committing the forgery, but distinct types of forgery. United States v. Albrecht , 43 M.J. 65 (C.A.A.F. 1995).

Forgery and larceny distinguished: The difference between forgery and larceny is that forgery requires falsity in the making. The act is false because it purports to be the act of someone other than the actual signer (the accused). “[T]he crux of forgery is the false making of the writing.” “The distinction between forgery and ‘the genuine making of a false instrument’ largely depends on whether the accused impersonates another person.” “Generally, signing one’s own name to an instrument – even with the intent to defraud – is not a forgery.” It is larceny. United States v. Weeks , ___M.J.___ (C.A.A.F. 2012).

For either type, the document must have legal efficacy. United States v. Hopwood, 30 M.J. 146 (C.M.A. 1990); United States v. Thomas , 25 M.J. 396 (C.M.A. 1988); MCM, pt. IV, 48c(4); see United States v. James , 42 M.J. 270 (1995) (leave form has “legal efficacy”); United States v. Ivey , 32 M.J. 590 (A.C.M.R. 1991) (checking account application), aff’d, 35 M.J. 62 (C.M.A. 1992); United States v. Victorian , 31 M.J. 830 (N.M.C.M.R. 1990); United States v. Johnson , 33 M.J. 1030 (N.M.C.M.R. 1991) (urinalysis report message from drug lab was not a “document of legal efficacy” and as such could not be subject of forgery).

test1 051 (Side 51)See generally TJAGSA Practice Note, Court Strictly Interprets Legal Efficacy , ArmyLaw., Aug. 1990, at 35; TJAGSA Practice Note, Legal Efficacy as a Relative Concept , Army Law., Jan. 1990, at 34; TJAGSA Practice Note, Forgery and Legal Efficacy , Army Law., Jun. 1989, at 40.

The instrument “tells a lie about itself.” United States v. Blackmon , 39 M.J. 705(N.M.C.M.R. 1993) (signing another’s name to “starter” checks from the accused’s checking account appeared to impose liability upon the third party whose name was being signed) aff’d, 41 M.J. 67 (C.M.A. 1994).

Significant injury need not result. United States v. Faircloth , 45 M.J. 172 (C.A.A.F.1996) (accused forged endorsement in financing company’s behalf on insurance check, issued to accused and financing company as copayees to auto damage); United States v. Sherman , 52 M.J. 856 (Army Ct. Crim. App. 2000) (where the accused and co-conspirator opened savings accounts by falsely and fraudulently signing signature cards, the general bookkeeping, security, and insurance functions inherent in agreeing to maintain a bank account imposed sufficient legal liability on the banks to warrant forgery convictions, even where there was no initial deposit).

Maximum Punishment

In cases where multiple, discrete instances of check forgeryare pled in one “mega-spec,” the maximum punishment is calculated as if they had been charged separately, extending analysis of United States v. Mincey , 42 M.J. 376 (C.A.A.F. 1995) (maximum punishment of a bad-check “mega-spec” is calculated by the number and amount of the checks as if they had been charged separately) to check forgery. United States v. Dawkins , 51 M.J. 601 (C.A.A.F. 1999).

A credit application itself is not susceptible of forgery under Article 123, because it, if genuine, would not create any legal right or liability on the part of the purported maker. United States v. Woodson , 52 M.J. 688 (C.G. Ct. Crim. App. 2000). 10. “Double forgery.” Forgery of an endorsement is factually and legally distinct from forgery of the check itself, because the acts impose apparent legal liability on two separate victims; thus, the government may charge the “double forgery” in two separate specifications. United States v. Pauling , 60 M.J. 91 (C.A.A.F. 2004). I. Failure to Pay Just Debt. MCM, pt. IV, 71; UCMJ art. 134.

  1. Elements.
    1. That the accused was indebted to a certain person or entity in a certain sum;
    2. That this debt became due and payable on or about a certain date;
    3. That while the debt was still due and payable the accused dishonorably failed to pay this debt; and
    4. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
  2. Evidence was legally sufficient to support conviction for dishonorable failure to paya just debt where accused failed to make an arrangement for payment, had made late payments before, failed to contact rental agent even after formal notice, and surreptitiously vacated the apartment without paying, cleaning, or repairing damage. United States v. Polk , 47 M.J. 116 (C.A.A.F. 1997). Guilty plea to offense was improvident where the military judge failed to define dishonorable conduct with respect to an AAFES debt, failed to elicit a factual predicate for dishonorable conduct regarding the debt, and failed to resolve inconsistencies which indicated an inability to pay the debt and a lack of deceit or evasion. A mere failure to pay a debt does not establish dishonorable conduct. Even a negligent failure to pay a debt is not dishonorable. The term “dishonorable” connotes a state of mind amounting to gross indifference or bad faith, and is characterized by deceit, evasion, false promises, denial of indebtedness, or other distinctly culpable circumstances. United States v. Bullman , 56 M.J. 377 (C.A.A.F. 2002), aff’d, 57 M.J. 478 (C.A.A.F. 2002); United States v. Burris , 59 M.J. 700 (C.G. Ct. Ctim. App. 2004).

Altering a Public Record

test1 064 (Side 64)MCM, pt. IV, 99; UCMJ art. 134. Mere completion of a blank form indicating graduation for an Army school and presentment of that document to Army officials was not “wrongful alteration of public record,” absent additional evidence of intent or attempt to use the document to alter the integrity of official Army record. United States v. McCoy , 47 M.J. 653 (Army Ct. Crim. App. 1997).

Frauds Against The United States

MCM, pt. IV, 58; art. 132. Submission of a travel voucher for a TDY trip “concocted” to primarily conduct personal business is a false claim under Article 132. United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999).

Forgery: making or altering.

Forgery: uttering.