United States v. Hopwood

29 M.J. 530, 1989 CMR LEXIS 734, 1989 WL 108600
CourtU S Air Force Court of Military Review
DecidedAugust 2, 1989
DocketACM 27437
StatusPublished
Cited by1 cases

This text of 29 M.J. 530 (United States v. Hopwood) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hopwood, 29 M.J. 530, 1989 CMR LEXIS 734, 1989 WL 108600 (usafctmilrev 1989).

Opinions

DECISION

KASTL, Senior Judge:

In United States v. Thomas, 25 M.J. 396 (C.M.A.1988), Chief Judge Everett closely analyzed the military crime of forgery; he cautioned that “Article 123, in its present form, creates a trap for unwary prosecutors, in that the legal efficacy requirement may be overlooked.” Id. at 402. In the case before us, we find that the prosecution avoided that booby trap. We hold that the credit application involved here satisfied the “legal efficacy requirement” and was a proper subject of forgery.

Despite pleas of not guilty, the appellant was found guilty by a general court-martial consisting of members of false official statements and four specifications of forgery, in violation of Articles 107 and 123, UCMJ, 10 U.S.C. §§ 907, 923. His sentence is a bad conduct discharge and reduction to airman basic.

On appeal, he raises a broadside attack against his conviction, particularly as to the offenses of forgery. We find no error and affirm.

Application for Credit

A credit application was the means the appellant allegedly used to commit the challenged forgery offense set forth in Charge II, Specification 4. He was found guilty of having forged the signatures of his brother and sister-in-law (who enjoyed good credit) on various documents in order to obtain credit and purchase a new Nissan Maxima automobile. Specification 4 alleged falsely making this credit application; Specifications 1, 2, and 3 alleged forgery of a sales contract, order, and insurance purchase agreement as other instruments employed with intent to defraud.1

We begin our analysis by noting that Article 123, UCMJ sets a stricter standard as to what constitutes forgery than do many civilian jurisdictions. The current Manual for Courts-Martial provides as follows:

With respect to the apparent legal efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts to impose a legal liability on another, or to change a legal right or liability to the prejudice of another.

MCM, Part IV, paragraph 48c(4)(emphasis added). In contrast, civilian requirements generally are far less stringent; the instrument “must have a tendency to defraud, or [532]*532prejudice the rights of another, and it must therefore have at least an apparent ‘legal efficacy’.” Clark and Marshall, Crimes 850 (6th Ed.1958) (emphasis added).

The essence of military forgery is this: Making a false signature or other entry on a document is not per se sufficient; the apparent nature of the document to impose legal liability or change legal rights is also critical. United States v. Thomas, 25 M.J. at 398. As Thomas indicates, Congress must have become fully conversant with the stricter standard when it held hearings in 1949 on the proposed new Uniform Code of Military Justice. At that time, the Judge Advocate General of the Army registered his disagreement with the draft language of Article 123, UCMJ and countered with a broader definition. Congress declined to enact his proposal. United States v. Thomas, at 399.2

The polar extremes are clear in military law. On the one hand, commercial paper which — if genuine — imposes a legal liability on another or changes his legal rights or liabilities is punishable. Contrariwise, a mere letter of introduction is not actionable; it could not impose a legal liability or change another’s legal right or liability. See MCM, Part IV, paragraph 48c(4). Cf. Clark and Marshall, Crimes 853 (6th Ed.1958) (civilian rule generally to the contrary as to letters of introduction unless they clearly confer no right and impose no duty). The problem lies between the two extremes. We are then faced with the judicial equivalent of the Sesame Street game “One of these things is not like the other.” The crux of the problem is how to rationally decide the cases in the middle range where the document in question appears to have some qualities from each extreme.

As to whether a credit application can be the subject of forgery, our research discloses no better rationale than that stated by Colonel Winthrop in his renowned treatise. In discussing the Articles of War and forgery in connection with making claims against the United States, he states that:

[T]he prosecution, as in a case of forgery at common law, should be prepared to prove that the falsified signature is upon a paper which is material, or which appears on its face to be material, to the proof of the claim, so as to be capable of effecting or contributing to effect some fraud in connection with it. The writings or papers mainly had in view of the paragraph are [herein are listed various documents] the completion of which by the signature of the person interested, or of the officer whose formal authentication is required, is essential to the substantiation of a claim for pay, & c.

Winthrop, Military Law and Precedents 702 (2d Ed.1920 Reprint) (emphasis added).

Colonel Winthrop has captured the essence of what is required under military law to prove forgery, we think: The document must be material ... capable of effecting or contributing to effect some fraud ... essential to the substantiation of a claim for pay and the like. To say it another way, the document must do more than “get you in the door,” as would a letter of introduction; rather, the document must adversely affect someone’s legal rights.

Upon the basis of over 30 years of Air Force precedent, we conclude that the credit application here was properly a subject of forgery. United States v. Nichols, 27 M.J. 909, 911-912 (A.F.C.M.R.1989); United States v. Reynolds, 21 C.M.R. 707 (A.F.B.R.1956) (excellent discussion of prece[533]*533dents). See United States v. Noel, 11 U.S.C.M.A. 508, 29 C.M.R. 324 (1960). Our conclusion appears supported by state decisions as well — although we recognize state statutes and practice may make the cases inapposite. See, e.g., State v. Ward, 482 So.2d 182, 183 (La.App.1986) and People v. Moyer, 1 Ill.App.3d 245, 273 N.E.2d 210, 212 (Ill.App.1971); see also People v. Stevens, 345 P.2d 582, 584-585 (Cal.App.1959). Cases are gathered in Annot., 90 A.L.R.2d 822 (1963), Annot., 49 A.L.R.2d 852 (1956); and 37 C.J.S. Forgery 55-56 (1943).

This credit application was, in practical terms, one document in a set; each was required to effectuate a change in the legal relationship between the parties. Does the fact that the credit application was part of a pack of false writings, all of which were necessary to accomplish the result, free the appellant of criminal accountability? We think not. We are convinced that the application was effectively an instrument which perfected the appellant’s claim to benefits. See United States v. Thomas, 25 M.J. at 401; United States v. Noel, 29 C.M.R. at 326; United States v. Reynolds, 21 C.M.R. at 711. It is immaterial that additional steps may have been needed before legal harm actually occurred. See United States v. Driggers, 21 U.S.C.M.A.

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Related

United States v. Hopwood
30 M.J. 146 (United States Court of Military Appeals, 1990)

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29 M.J. 530, 1989 CMR LEXIS 734, 1989 WL 108600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hopwood-usafctmilrev-1989.