United States v. Nimmons

59 M.J. 550, 2003 CCA LEXIS 202, 2003 WL 22068773
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedAugust 26, 2003
DocketNMCM 200101940
StatusPublished
Cited by2 cases

This text of 59 M.J. 550 (United States v. Nimmons) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nimmons, 59 M.J. 550, 2003 CCA LEXIS 202, 2003 WL 22068773 (N.M. 2003).

Opinion

PRICE, Senior Judge:

The appellant was convicted of larceny (two specifications), forgery (two specifications), and making and uttering worthless checks, in violation of Articles 121, 123, and 123a, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 923, and 923a. A military judge, sitting as a special court-martial, sentenced the appellant to confinement for 3 months, reduction to pay grade E-l, “forfeiture of two-thirds pay for 3 months” and a bad-conduct discharge. Record at 73. The convening authority approved the sentence as adjudged.

Although not assigned as error, we note that the military judge failed to state the amount of adjudged forfeitures in whole dollars when he announced the sentence, as required by Rule for Courts-Martial 1003(b)(2), Manual for Courts-Martial, United States (2000 ed.). He also introduced an element of ambiguity into the sentence by failing to include the words “per month.” Given the convening authority’s failure to correct and clarify the sentence in taking action, we will do so in our decretal paragraph. United States v. Johnson, 13 C.M.A. 127, 128, 32 C.M.R. 127, 128, 1962 WL 4462 (1962); United States v. Burkett, 57 M.J. 618, 619-21 (C.G.Ct.Crim.App.2002). Once again, we remind all military judges to pay attention to detail on the announcement of forfeitures.

In his sole assignment of error, the appellant contends that part of his guilty plea to forgery was improvident, because no writing or signature was used to commit the offense. Specifically, the appellant asserts that by merely calling Sprint and giving a stolen check number and account information to pay for a cellular telephone, he did not commit the offense of forgery. We agree with the appellant’s contention.

With that exception, we conclude that the findings and sentence are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Providence of Guilty Plea — The Essential Element of a Writing or Signature in the Crime of Forgery

In Charge I, Specification 1, under Article 121, UCMJ, 10 U.S.C. § 921, the appellant was charged with stealing U.S. currency of a value of $2,342.40 from his roommate, Private First Class (PFC) Maxfield. In Charge II, Specification 1, under Article 123, the [551]*551appellant was charged with falsely making and uttering 19 checks.

According to the stipulation of fact and the providence inquiry, the basis for these charges may be summarized as follows. The appellant stole PFC Maxfield’s checkbook containing a number of unused blank checks. Over the course of about one month, the appellant forged PFC Maxfield’s signature upon the paper checks and used those cheeks to wrongfully obtain cash and purchase various items of merchandise. The grand total of these transactions was $2,342.40.

For check # 0115, however, the appellant’s actions departed from his usual modus operandi. As the appellant explained to the military judge:

I called Sprint PCS and told them that I needed to make a payment for my phone. They asked me how, and I told them Check by Phone. They asked me my information, and I gave them my information, my phone number and what check number I would like to use. I gave them the check number and they verified it with the bank, and it went through.

Record at 29. The military judge later continued the colloquy:

MJ: And on each and every one of those checks, did you physically sign Aaron A. Maxfield’s signature?
ACC: All but 0115, sir.
MJ: On all but 0115 was that signature a forgery?
ACC: Yes, sir.

Id. at 30. Nothing in the record indicates that the paper check numbered 0115 or any other writing was ever forwarded to Sprint or used in any other way by the appellant for this particular transaction.

Article 123 of the UCMJ, 10 U.S.C. § 923 states:

Any person subject to this chapter who, with intent to defraud—
(1) falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; or
(2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered; is guilty of forgery and shall be punished as a court-martial may direct.

The essential elements of this offense of forgery include, in pertinent part, that the accused falsely made and uttered “a certain signature or -writing.” Manual for Courts-Martial, United States (2000 ed.), Part IV, 1148b. In this case, as to that part of Specification 1 of Charge II referencing “Cheek # 0115 (electronic),” there was no signature or writing. Charge Sheet. Notwithstanding this discrepancy, the Government argues that the appellant essentially forged the signature of PFC Maxfield by telephone. In relying on this theory of an “electronic signature,” the Government cites the case of United States v. Miller, 70 F.3d 1353 (D.C.Cir.1995).

In Miller, the defendant wrongfully used his employer’s automatic teller machine (ATM) card and associated personal identification number (PIN) to withdraw cash from the employer’s bank account. He was convicted of bank fraud and access device fraud under 18 U.S.C. § 1344 and 18 U.S.C. § 1029(a)(2), respectively. On appeal, the defendant contended that the evidence was insufficient to establish the element of misrepresentation. In rejecting that argument, the court concluded that by inserting the ATM card into the ATM and punching in the PIN, the defendant misrepresented his authority to withdraw funds from his employer’s account. The court then made the following comment:

What he did ... was to enter [the employer’s] PIN, which acts as a sort of electronic signature authorizing an ATM to release available funds. That he did so without [the employer’s] knowledge or permission is tantamount to cashing a check with a forged signature — conduct we have expressly held violates section 1344(2).

Miller, 70 F.3d at 1355. We note that, on these facts, if properly charged under the Uniform Code of Military Justice, the defendant would be convicted of larceny by wrongful obtaining, not forgery. Thus, we are not inclined to apply this language of the Court of Appeals for the D.C. Circuit in what [552]*552amounted to a larceny ease to the forgery issue before us.

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Cite This Page — Counsel Stack

Bluebook (online)
59 M.J. 550, 2003 CCA LEXIS 202, 2003 WL 22068773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nimmons-nmcca-2003.