United States v. Powell

24 M.J. 603
CourtU S Air Force Court of Military Review
DecidedApril 24, 1987
DocketACM S27292
StatusPublished
Cited by5 cases

This text of 24 M.J. 603 (United States v. Powell) 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. Powell, 24 M.J. 603 (usafctmilrev 1987).

Opinions

DECISION

STEWART, Judge.

At a special court-martial the appellant was convicted of attempted wrongful appropriation and forgery contrary to his pleas, and failure to repair in accordance with his pleas. The sentence imposed by the military judge, and approved by the convening authority, included a bad conduct discharge and two months confinement.

The appellant avers that the forgery specification does not state an offense in that the alleged forged document, if true, would not create a legal obligation or impose a legal burden on the recipient of the paper. He also challenges the attempted wrongful appropriation conviction on the grounds the evidence is legally insufficient and, although the specification alleges “property” was the object of the attempted taking, the facts of the case show the object was “services.” Lastly, he moves for dismissal of these two charges for lack of subject matter jurisdiction.

In our view this latter assertion is clearly without merit, and, accordingly, discussion is not warranted. On the other hand, while we disagree with his challenges to the attempted wrongful appropriation conviction, we conclude he is correct concerning the forgery specification.

On 2 July 1986 the appellant went to the Blytheville Federal Credit Union with a view to borrowing about $200.00. He already owed that credit union $199.20. He [605]*605discussed the proposed new loan with a Mr. Warren, a Blytheville Federal Credit Union loan officer. Together, with the appellant providing the information, they partially filled out a loan application. The proposed new loan was for $200.80. Pursuant to information provided by the appellant Warren entered the following items on the application: the purpose of the loan was to buy furniture, the appellant’s current address was at an apartment off base, and the appellant’s date of separation was 31 October, 1990. That information was false in that the correct date was 31 October 1987. Warren also gave the appellant a form entitled “Verification of Military History.” The appellant was to complete the application form, sign it, complete the “Verification of Military History” form, obtain his commander’s or first sergeant’s signature verifying the correctness of the information on the latter form, and lastly bring all these completed papers back to Warren.

The appellant then left the credit union with the papers. On the application he indicated he was married, which was false, and entered “N/A” to the following questions: “Have you ever been arrested/convicted?” and “Had a UIF, or is one pending?”. As a matter of fact, he had been convicted in civilian court of DWI earlier in the year and had a UIF containing letters of reprimand for driving while drunk, failure to repair, and issuing checks which were dishonored for insufficient funds. He also falsely indicated he was renting his quarters for $205.00 per month and had one 18 year old dependent. Further, he wrote he had only two outstanding debts totaling $207.00, when in fact he was additionally indebted to a Mr. Wallin for $805.00 for automobile repairs.

Also the appellant completed the “Verification of Military History”. On this form he acknowledged he had been “arrested/convicted” and that he “Had a UIF”. However, once again he falsely listed as his local address the off base apartment. Furthermore, without authorization he wrote what appeared to be his first sergeant’s signature below the statement, “I have reviewed the above statements and find them correct ...”

After signing the papers where he was required, the appellant returned them to the credit union the same day, 2 July 1986. Credit union officials reviewed them for the purpose of determining whether to grant the loan but disapproved the loan because they believed he already was over extended with financial obligations.

In a statement made to the Security Police the appellant related that he needed the money from the requested loan to help pay off Mr. Wallin. He admitted signing his first sergeant’s name to the “Verification of Military History”, and he said that he thought having dependents would help get the loan approved.

Credit union officials testified that they relied on the information on the two forms in making their loan decisions. For instance, $205.00 a month rent would be taken into consideration in determining the borrower’s ability to repay a loan from the credit union, as would an outstanding loan of $805.00, which the appellant did not report. Furthermore, the first sergeant’s signature was important to the credit union. Both the credit union vice president and the appellant’s first sergeant testified as to an informal arrangement between the credit union and Blytheville AFB first sergeants. If the. first sergeant merely signed the verification form, that meant that not only was the information correct, but also that the first sergeant had nothing adverse to say about the loan applicant. If the first sergeant also added his telephone number, that meant there was something about the loan applicant that the credit union should know. The appellant’s first sergeant testified he would not have signed the verification form because the appellant’s local address on it was incorrect, but if he had signed it, he would have added his telephone number. The verification form had no telephone number for the first sergeant on it.

An essential element of the offense of forgery under Article 123, U.C. [606]*606M.J., is, “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 ...” Manual for Courts-Martial (M.C.M.), 1984, paragraph 48b(l)(b) and (2)(b). “[T]he false making or altering, with intent to defraud, of a writing which could not impose a legal liability, as a mere letter of introduction,” is not forgery. M.C.M., 1984, paragraph 48c(4). Some documents, such as checks and receipts, on their face appear to impose or change legal liabilities. Other documents, such as identification cards (United States v. Davis, 4 M.J. 752 (A.F.C.M.R.1978)), bank signature cards (United States v. Chandler, 17 M.J. 571 (A.F.C.M.R.1983)), and a “First Sergeant’s Slip” submitted with a loan application (United States v. Mulvaney, ACM S26511, (A.F.C.M.R. 13 December 1984) (unpublished opinion)), do not on their faces appear to impose or alter legal liabilities. Where a document does not appear on its face to impose or change legal liability to another’s prejudice, there is no forgery unless extrinsic facts demonstrate the document appeared to impose or change legal liability. M.C.M., 1984, paragraph 48c(4). Such extrinsic facts must be pleaded. United States v. Davis, supra, and United States v. Chandler, supra.

The pertinent allegations in the case before us read that the appellant “did ... falsely make the signature of Senior Master Sergeant William R. Jones, to a certain document, to writ: a Blytheville Federal Credit Union Verification of Military History, which document would, if genuine, apparently operate to the legal harm of another, and which could be used to the legal harm of the Blytheville Federal Credit Union in that the [document] was submitted to the [credit union] on 2 July 1986, by [the appellant], to induce the [credit union] to loan” the appellant $200.80. We note at the outset that the document in question does not on its face appear to impose or change legal liability. The credit union does not appear legally obligated in any manner.

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Related

United States v. Johnson
27 M.J. 798 (U S Air Force Court of Military Review, 1988)
United States v. Anderson
27 M.J. 653 (U.S. Army Court of Military Review, 1988)
United States v. English
25 M.J. 819 (U S Air Force Court of Military Review, 1988)
United States v. Powell
25 M.J. 814 (U S Air Force Court of Military Review, 1988)

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24 M.J. 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-powell-usafctmilrev-1987.