United States v. Ivey

35 M.J. 62, 1992 CMA LEXIS 158, 1992 WL 207899

Opinion

Opinion of the Court

SPORKIN, District Judge:

*

On February 13, 1990, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Campbell, Kentucky. Pursuant to his pleas, he was found guilty of attempted larceny, conspiracy to commit forgery and larceny, and forgery, in violation of Articles 80, 81, and 123, Uniform Code of Military Justice, 10 USC §§ 880, 881, and 923, respectively. Appellant was sentenced to a dishonorable discharge, confinement for 1 year, total forfeitures, and reduction to Private El. The convening authority approved only so much of the sentence as provided for a bad-conduct discharge, confinement for 9 months, total forfeitures, and reduction to Private El. The Court of Military Review affirmed the approved findings and sentence on January 28, 1991. 32 MJ 590.

This Court granted review of the following issue:

WHETHER APPELLANT’S PLEAS OF GUILTY TO CHARGE I, SPECIFICATION 1 (FORGERY) ARE IMPROVIDENT BECAUSE THE DOCUMENT IN QUESTION (APPLICATION FOR A CHECKING ACCOUNT) LACKS LEGAL EFFICACY AND CANNOT BE THE SUBJECT OF FORGERY AS A MATTER OF LAW.

We hold appellant’s pleas of guilty to forgery in violation of Article 123 were valid and affirm. See generally United States v. Harrison, 26 MJ 474, 476 (CMA 1988).

This case arose from conduct related to the companion case of United States v. Burnette, 35 MJ 58 (CMA 1992). Appellant, along with Burnette, became involved in a scheme to defraud merchants using checking accounts opened without authorization in the name of Christ M. Skezas, a fellow servicemember.

This fraudulent activity was initiated when Private First Class Charles W. Burnette found a wallet belonging to Christ M. Skezas. The wallet contained an American Express charge card and a military identification card. PFC Burnette decided to use the cards to fraudulently purchase merchandise under the name of Christ M. Skezas. Appellant joined PFC Burnette in this plan, conspiring to open checking accounts at various banks under the name of Christ M. Skezas and using the charge card and I.D. as identification. Once they received temporary checks, appellant and PFC Burnette intended to overdraw the account by uttering checks to merchants in amounts that exceeded the funds on deposit in the account.

On September 22, 1989, appellant drove PFC Burnette to a Sovran Bank in Hopkinsville, Kentucky, to open a checking account under the name of Christ M. Skezas. Appellant also gave PFC Burnette $50.00 to deposit into the account. PFC Burnette then opened a checking account using the charge card and the military I.D. card, and by forging Christ M. Skezas’ signature. The bank accepted the checking-account application and issued temporary checks to use on the account.

The next day appellant drove Burnette to a Radio Shack store to purchase some computer equipment. Appellant waited outside while PFC Burnette went into the store. PFC Burnette then made and uttered a check to the merchant, using the American Express card for verification purposes. Upon notification by the American Express Company that the charge card had been reported stolen, the merchant called the police. Appellant was subsequently arrested and turned over to the Army Criminal Investigation Command, where he signed a confession.

At trial, appellant pleaded guilty to the charges described above. He specifically admitted that the opening of this checking account “was going to work to the legal detriment of Skezas and that it was going to create a debit for his name.” For the reasons set out in United States v. Burnette, 35 MJ 58 (CMA 1992), we believe that his pleas were provident and that the findings of guilty to this offense may stand.

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX, GIERKE, and WISS concur.

Judge CRAWFORD did not participate.

Of the United States District Court for the District of Columbia, sitting by designation pursuant to Article 142(f), Uniform Code of Military Justice, 10 USC § 942(f).