                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                    Michael A. PAULING, Specialist
                         U.S. Army, Appellant

                               No. 02-0603

                         Crim. App. No. 9700685


       United States Court of Appeals for the Armed Forces

                        Argued October 21, 2003

                          Decided July 1, 2004

     GIERKE, J., delivered the opinion of the Court, in which
  CRAWFORD, C.J., and EFFRON J., joined. ERDMANN, J., filed a
   separate opinion concurring in part and dissenting in part.
          BAKER, J., filed a separate dissenting opinion.

                                  Counsel

For Appellant: Captain Craig A. Harbaugh (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major
Allyson G. Lambert (on brief); Colonel Adele H. Odegard,
Lieutenant Colonel E. Allen Chandler, Jr., Major Imogene M.
Jamison, and Captain Mary E. Card.

For Appellee: Captain Charles C. Choi (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, and Major
Theresa A. Gallagher (on brief).

Military Judge:    R. J. Hough



  This opinion is subject to editorial correction before final publication.
United States v. Pauling, No. 02-0603/AR

     Judge GIERKE delivered the opinion of the Court.

     This case concerns how to charge a “double forgery,” which

occurs where a check has both “a forged payor signature and a

forged indorsement.”    Black’s Law Dictionary 661 (7th ed. 1999).

Forging a drawer’s signature on a check violates Article 123,

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §

923 (2000).   Forging an indorser’s signature on a check also

violates Article 123.   Where both the drawer’s signature and the

indorser’s signature are forged on the same check, has one

forgery offense occurred or two?       We hold that the Government

may properly charge a “double forgery” as two separate offenses.

                           I.    BACKGROUND

                          A.    Case History

     In accordance with Appellant’s guilty pleas, a general

court-martial convicted him of making a false official

statement, two specifications of larceny, and two specifications

of forgery, in violation of Articles 107, 121, and 123, UCMJ, 10

U.S.C. §§ 907, 921, and 923 (1994).      A panel of officer and

enlisted members sentenced him to a bad-conduct discharge,

confinement for three years, total forfeiture of pay and

allowances, and reduction to the lowest enlisted grade.      The

convening authority approved the sentence as adjudged.




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United States v. Pauling, No. 02-0603/AR

       The Army Court of Criminal Appeals affirmed the findings

and sentence in a divided unpublished opinion.1   We granted

review to determine whether separately charging the forgery of

the drawer’s signature and forgery of the indorser’s signature

on the same check violates the prohibitions against multiplicity

or the unreasonable multiplication of charges.2

                              B.   Facts

       Appellant was charged with forging 16 checks.3   He made 12

of the checks payable to himself and four payable to his wife.

One specification charged him with forging the writing on the

front of the checks, including the drawer’s signatures.     A

separate specification charged him with forging his wife’s




1
  United States v. Pauling, No. 9700685, slip op. (A. Ct. Crim.
App. July 15, 1999) (per curiam) (mem.).
2
    The granted issues are:
       I. WHETHER THE LOWER COURT ERRED IN REFUSING TO FIND
       SPECIFICATION 1 OF CHARGE II (FORGERY) MULTIPLICIOUS
       WITH SPECIFICATION 2 (FORGERY) OF THE SAME CHARGE WHEN
       BOTH SPECIFICATIONS ADDRESSED THE SAME FORGED CHECKS.

       II. WHETHER THE LOWER COURT ERRED IN REFUSING TO FIND
       SPECIFICATION 1 OF CHARGE III AS AN UNREASONABLE
       MULTIPLICATION OF SPECIFICATION 2 OF THE SAME CHARGE.
3
  The checks were drawn on a credit union. At one    time, arcane
distinctions existed between a “share draft” drawn   on a credit
union and a “check.” See United States v. Eatmon,    47 M.J. 534,
536 n.2 (A.F. Ct. Crim. App. 1997), aff’d, 49 M.J.   273 (C.A.A.F.
1998). However, the law of negotiable instruments    now includes
share drafts within the definition of checks. See    U.C.C. § 3-
104 cmt. 4 (amended 2002).


                                   3
United States v. Pauling, No. 02-0603/AR

signature as the indorser on the four checks made payable to

her.

       Before entering pleas, the defense moved to dismiss the

specification alleging the forged indorsements, arguing that it

was multiplicious with the specification alleging forgery of the

writing on the front of the checks.    Citing our opinion in

United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995), the

defense counsel offered three rationales:    (1) the specification

alleging the forged checks “covers” the specification alleging

the forged indorsements; (2) the two specifications apply to

misconduct that was “substantially one transaction”; and (3)

“this is just simply multiplication of charges.”    The military

judge deferred ruling on the motion.    Appellant then pleaded

guilty to all of the charges and specifications.

       After the providence inquiry, the military judge ruled that

the two specifications at issue were multiplicious for

sentencing purposes, but not for findings purposes.    This

reduced the maximum authorized period of confinement from 115

years to 95 years.   After that ruling, Appellant indicated his

continued desire to plead guilty.     The military judge then

entered findings of guilty to all charges and specifications.

       During the providence inquiry, Appellant explained that he

acquired possession of the checkbook of his civilian roommate,

Little Joe M. Sandoval.   Appellant forged 12 of the checks



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United States v. Pauling, No. 02-0603/AR

payable to himself and, without his estranged wife’s knowledge,

made four payable to her.     He explained that he made some

payable to his wife “so I wouldn’t have so many in my name.”     He

indorsed the four checks with his wife’s forged signature and

successfully negotiated them at a federal credit union in

Colorado.   Appellant agreed with the military judge that this

could have resulted in his wife’s “financial legal liability”

for the money he received.

                            II.    DISCUSSION

                         A.       Multiplicity

     When Appellant forged Mr. Sandoval’s signature as the

drawer of the four checks at issue, he clearly violated Article

123 because those signatures, if genuine,4 would make Mr.

Sandoval legally liable to pay the amounts stated on the checks.

See Manual for Courts-Martial, United States (2002 ed.), Part

IV, para. 48.(b).(1) [hereinafter MCM] (setting out the elements

of forgery).   When Appellant signed his wife’s name as the

apparent indorser of the four checks at issue, he also clearly


4
  Under Article 123, forgery occurs where a person falsely makes
a signature under circumstances where the forged signature, if
it were genuine, would apparently impose a legal liability on
another. “In military law, as in the civilian criminal law,
actual legal liability of the person whose signature is forged
to a document is not required; all that is necessary is that
legal liability would ‘apparently’ result if the signature were
genuine.” United States v. Uhlman, 1 M.J. 419, 421 (C.M.A.
1976) (Cook, J., dissenting).




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United States v. Pauling, No. 02-0603/AR

violated Article 123 because had her signature been genuine, the

governing state law would have obligated her to pay the face

amount of the check if it was dishonored.   See Colo. Rev. Stat.

Ann. § 4-3-415 (West Supp. 2003); see also United States v.

Faircloth, 43 M.J. 711, 717 (A.F. Ct. Crim. App. 1995) (Becker,

J., concurring), rev’d on other grounds, 45 M.J. 172 (C.A.A.F.

1996).   Thus, Appellant could have been charged with forging

either the writing on the front of the checks or the

indorsements.   The question in this case is whether he could be

found guilty of both.

     Double forgeries “are not uncommon, because a criminal

forging the drawer’s signature and hoping to escape detection is

unlikely to make the bogus check payable to himself or herself.

Therefore, many forged checks are made payable to third parties

whose endorsements are then also forged, creating a double

forgery.”   Alvin C. Harrell, Impact of Revised UCC Articles 3

and 4 on Forgery and Alteration Scenarios, 51 Consumer Fin. L.Q.

Rep. 232, 239-40 (1997).   Despite the common nature of double

forgery, the issue of whether an accused may be separately

convicted of forging a drawer’s signature and an indorsement on

the same check is a question of first impression in the military

justice system.

     An unconditional guilty plea waives a multiplicity issue

unless the offenses are “‘facially duplicative,’ that is,



                                 6
United States v. Pauling, No. 02-0603/AR

factually the same.”    United States v. Lloyd, 46 M.J. 19, 23

(C.A.A.F. 1997) (citations omitted).     Whether two offenses are

facially duplicative is a question of law that we will review de

novo.    Cf. United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.

2002) (issue of whether offenses are greater and lesser-included

offenses is question of law subject to de novo review).     Two

offenses are not facially duplicative if each “requires proof of

a fact which the other does not.”      United States v. Hudson, 59

M.J. 357, 359 (C.A.A.F. 2004) (quoting Blockburger v. United

States, 284 U.S. 299, 304 (1932)).      Rather than constituting “a

literal application of the elements test,” determining whether

two specifications are facially duplicative involves a realistic

comparison of the two offenses to determine whether one is

rationally derivative of the other.     Id. (citing United States

v. Foster, 40 M.J. 140, 146 (C.M.A. 1994)).      This analysis turns

on both “the ‘factual conduct alleged in each specification’”

and “the providence inquiry conducted by the military judge at

trial.”    Id. (quoting United States v. Harwood, 46 M.J. 26, 28

(C.A.A.F. 1997)).

        In this case, Appellant entered an unconditional plea of

guilty and persisted with that plea after the military judge

denied the defense’s multiplicity motion.     Accordingly, we will

find multiplicity only if the specification alleging forgery of




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United States v. Pauling, No. 02-0603/AR

the checks facially duplicates the specification alleging

forgery of the indorsements.

     The two specifications are not facially duplicative.

Rather, they separate the information on the front of the

checks, which is expressly alleged in one specification, from

the indorsements forged on their backs, which is alleged in

another.   As the Army Court of Criminal Appeals noted, “the

precise language of the specification” alleging forgery of the

checks “includes only the check numbers, dates, payees, amounts

and payors, but not the endorsement signatures.”   Pauling, No.

9700685, slip op. at 4.   The specification alleging forgery of

the checks does include Mrs. Pauling’s name as the relevant

checks’ payee.   However, the other specification alleges the

factually distinct act of forging her signature as the indorser.

We agree with those state courts that have recognized forgery of

an indorsement as not only factually distinct, but also legally

distinct from forgery of the check itself.5   A double forgery


5
 See, e.g., Brown v. State, 7 So.2d 28, 28 (Ala. 1942)
(recognizing that an indorsement is a separate contract from the
instrument and holding that “forgery of an instrument is a
different offense from the forgery of an indorsement of it”);
State v. Waterbury, 110 N.W. 328, 328 (Iowa 1907) (“The check
was a complete instrument without the indorsements. These
formed no part of it, but were distinct contracts.”); Green v.
State, 363 A.2d 530, 532 (Md. Ct. Spec. App. 1976) (“under the
[Maryland forgery] statute, forgery of an indorsement on any of
certain specified instruments is, or at least can be, a
separately indictable crime”); Miller v. People, 52 N.Y. 304,
305 (1873) (“The check was a complete instrument without the
indorsement. The indorsement did not form part of the check, but

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United States v. Pauling, No. 02-0603/AR

creates two victims.   Forging Mr. Sandoval’s name as the drawer

imposed an apparent legal liability on him to pay the face

amount of the check.   Additionally, under the law of the

jurisdiction where the checks were negotiated,6 the indorser is

obligated to pay a check’s face amount in the event of dishonor.

The risk that such an obligation will arise is particularly high

where a check bears a forged drafter’s signature, thus providing

a basis for its dishonor.   Forging Mrs. Pauling’s name as the

check’s indorser therefore imposed an apparent legal liability

on her, as well.   Holding that forgery of the drawer’s signature

is multiplicious with forgery of the indorser’s signature would

ignore one of the double forgery’s two victims.




was a distinct contract.”); State v. Daye, 208 S.E.2d 891, 893
(N.C. App. 1974) (uttering a forged check and uttering a forged
indorsement “are separate and distinct felonies”); Cochran v.
State, 30 S.W.2d 316 (Tex. Crim. App. 1930) (holding that
because an indorsement on the back of a check does “not
constitute a part of” the check itself, charging the forgery of
one but proving the forgery of the other resulted in a fatal
variance). Contra see, e.g., People v. Connell, 414 N.E.2d 796
(Ill. App. 1980) (holding that in the context of the forgery
statute, the term “makes” includes the term “endorses” because
without indorsement, a check cannot be cashed); State v. Hearn,
154 N.E. 244, 245 (Ohio 1926); State v. Smart, No. 76AP-397,
1976 Ohio App. LEXIS 7553 (Ohio Ct. App. Oct. 21, 1976) (holding
that forging drawer’s name on check, forging indorser’s name on
check, and uttering the forged check constituted “the same
conduct” and could support conviction of only one offense);
Sprouse v. Commonwealth, 81 Va. 374, 378 (1886) (treating double
forgery as “one transaction – a forgery”).
6
  See Col. Rev. Stat. Ann. § 4-3-415 (West Supp. 2003). This
statute is a virtually verbatim duplicate of the official
Uniform Commercial Code’s text. See U.C.C. § 3-415 (1993).

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United States v. Pauling, No. 02-0603/AR

     As Appellant demonstrated all too well, negotiating a

forged check can be accomplished with or without a forged

indorsement.      Attempting to deceive by falsely indorsing a check

with an actual person’s name7 subjects that person to apparent

financial liability, thereby satisfying all of the elements of

forgery.   See MCM, Part IV, para. 48.(b).(1).     Such a false

indorsement could also lead law enforcement authorities to

suspect an innocent person of having forged the check itself.

For example, in this case Appellant’s misdeeds resulted in law

enforcement officials interviewing his wife, fingerprinting her,

obtaining handwriting exemplars from her, and taking her sworn

statement.

     Accordingly, we decline to establish a “two forgeries for

the price of one” rule.

             B.    Unreasonable Multiplication of Charges

     Appellant also complains that charging the forged

indorsements in a separate specification from the forgery of the

writing on the front of the checks resulted in an unreasonable

multiplication of charges.     “What is substantially one

transaction should not be made the basis for an unreasonable

multiplication of charges against one person.”     Rule for Courts-


7
  In this case, we need not and do not address the multiplicity
implications of signing a fictitious name as the indorser on a
check bearing a forged drawer’s signature.




                                   10
United States v. Pauling, No. 02-0603/AR

Martial 307(c)(4) discussion.   “Unreasonable multiplication of

charges is reviewed for an abuse of discretion.”     United States

v. Monday, 52 M.J. 625, 628 n.8 (A. Ct. Crim. App. 1999).    See

also United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).

     We have endorsed a five-part test for determining whether

the Government has unreasonably multiplied charges:

     (1) Did the accused object at trial that there was an

     unreasonable multiplication of charges and/or

     specifications?

     (2) Is each charge and specification aimed at

     distinctly separate criminal acts?

     (3) Does the number of charges and specifications

     misrepresent or exaggerate the appellant’s

     criminality?

     (4) Does the number of charges and specifications

     unreasonably increase the appellant’s punitive

     exposure?

     (5) Is there any evidence of prosecutorial

     overreaching or abuse in the drafting of the charges?

See Quiroz, 55 M.J. at 338 (approving with modification test

established by United States v. Quiroz, 53 M.J. 600, 607 (N-M.

Ct. Crim. App. 2000)).   These factors must be balanced, with no

single factor necessarily governing the result.




                                11
United States v. Pauling, No. 02-0603/AR

     Even assuming that the defense counsel satisfied the first

Quiroz criterion when he objected that “this is just simply

multiplication of charges,” the defense has not satisfied any of

the other four Quiroz criteria.

     Regarding the second Quiroz criterion, we have already

concluded that the specification alleging forgery of the writing

on the front of the checks was aimed at distinctly separate

criminal acts from the specification alleging forgery of the

indorsements.

     Nor can Appellant meet the third Quiroz criterion, which

considers whether the charges exaggerate his criminality.    On

the contrary, charging the forgery of 16 checks and four

indorsements in two specifications was a fair and reasonable

exercise of prosecutorial discretion.

     In this case, charging the forged indorsements in a

separate specification did not implicate the fourth Quiroz

criterion concerning increased punitive exposure.   The military

judge held that the two specifications were multiplicious for

sentencing purposes and adjusted the maximum punishment

accordingly.8   See United States v. McKinley, 27 M.J. 78, 80



8
  While not within the scope of the issues before us, we note
that the military judge did not deliver, nor did the defense
request, an instruction that the forgery of the four
indorsements merged with the forgery of the relevant checks for
sentencing purposes. See United States v. Holsworth, 7 M.J.
184, 187 (C.M.A. 1979).


                                  12
United States v. Pauling, No. 02-0603/AR

(C.M.A. 1988) (treating military judge’s instructions as law of

the case).

     Finally, nothing in the record suggests prosecutorial

abuse, the fifth Quiroz criterion.   This was not a case of

“unreasonable multiplication of charges by creative drafting.”

United States v. Morrison, 41 M.J. 482, 484 n.2 (C.A.A.F. 1995).

Rather, this was a case of appropriately charging Appellant’s

overly-creative criminal activity.

                        III.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                13
United States v. Pauling, 02-0603/AR

     ERDMANN, Judge (concurring in part and dissenting in part):

    I concur with the majority that the forgery specifications

are not multiplicious for findings.     Under the test established

in Blockburger v. United States, 284 U.S. 299 (1932) and adopted

by this Court in United States v. Teters, 37 M.J. 370 (C.M.A.

1993), the forgery of the payor’s signature on the front of a

check is a distinct offense from the forgery of the indorser’s

signature on the back of that same check and the offenses are not

facially duplicative.   See United States v. Lloyd, 46 M.J. 19, 23

(C.A.A.F. 1997).   Under the circumstances of this case, however,

I believe that charging forgery of all 16 checks and separately

charging forgery of Specialist Pauling’s wife’s signature as

indorser on four of those checks constitutes an unreasonable

multiplication of charges.

                                FACTS

    Pauling was charged with forging 16 checks belonging to

Little Joe Sandoval.    He made 12 of the checks payable to himself

and four of the checks payable to his wife.    As Pauling

explained, he did so to avoid having “so many in [his own] name.”

On those four checks, he forged Mrs. Pauling’s signature on the

back of each check as the indorser.     He cashed all of the checks,

cumulatively worth approximately $5,000, on 16 separate occasions

at two financial institutions over a month’s time.

    Pauling was also charged with two specifications of larceny,

one alleging larceny of $1,675 from the Army National Bank, Fort

Carson, Colorado, and the other alleging larceny of $3,400.39


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United States v. Pauling, 02-0603/AR

from the Security Service Federal Credit Union, Fort Carson.        The

larceny specifications reflected the money Pauling obtained when

he cashed the 16 forged checks.    All four of the checks made

payable to Pauling’s wife were cashed at Security Service Federal

Credit Union.

    Defense counsel moved to dismiss Specification 1 of the

forgery charge (forgery of Mrs. Pauling’s signature as indorser

four times), asserting that Specification 1 was multiplicious

with Specification 2 (forging the front side of all 16 checks).

Defense counsel did not specifically move to dismiss

specification 1 on the basis of unreasonable multiplication of

charges but did mention the “multiplication of charges” in making

the motion to dismiss.

    During argument on the multiplicity motion defense counsel

also asserted that Charge II (larceny) was multiplicious for

sentencing.   The military judge ruled that the larceny

specifications were not multiplicious for findings or sentencing

with the forgery specifications.       He also ruled that the two




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United States v. Pauling, 02-0603/AR

forgery specifications were not multiplicious for findings but

that they were multiplicious for sentencing purposes.*    Despite

making this determination, the military judge failed to inform

the members that the two forgery specifications should not be

considered separately for punishment.

                               DISCUSSION

    The concept of unreasonable multiplication of charges is

based on Rule for Courts-Martial 307(c)(4) [R.C.M.].     “What is

substantially one transaction should not be made the basis for an

unreasonable multiplication of charges against one person.”

R.C.M. 307(c)(4) discussion.   To determine whether a military

judge or Court of Criminal Appeals has abused its discretion and

affirmed an unreasonable multiplication of charges, we apply a

five-part test:

       (1)   Did the accused object at trial that there was an
             unreasonable multiplication of charges and/or
             specifications?
       (2)   Is each charge and specification aimed at distinctly
             separate criminal acts?
       (3)   Does the number of charges and specifications
             misrepresent or exaggerate the appellant's
             criminality?



*
 A finding that there is no multiplicity for findings but there
is multiplicity for sentencing, in this case and others, raises
interesting questions. This Court and the United States Supreme
Court have applied the standard in Blockburger v. United States,
284 U.S. 299 (1932), to both inquiries. See Albernaz v. United
States, 450 U.S. 333 (1981); United States v. Oatney, 45 M.J.
185, 189 (C.A.A.F 1996). If the Blockburger test is met for
multiplicity for sentencing, it raises the question as to why it
would not also be met for multiplicity for findings, invalidating
both the sentence and the conviction. See Rutledge v. United
States, 517 U.S. 292 (1996); Ball v. United States, 470 U.S. 856
(1985).

                                 3
United States v. Pauling, 02-0603/AR

       (4)   Does the number of charges and specifications
             unreasonably increase the appellant's punitive
             exposure?
       (5)   Is there any evidence of prosecutorial overreaching
             or abuse in the drafting of the charges?


United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001).      I

agree with the majority with respect to factors one and two.

However, I believe that the remaining factors support a

conclusion that there was an unreasonable multiplication of

charges in this case.

    For each check upon which Pauling made his wife the payee, he

faced triple conviction and punishment:   five years for forging

the front of the check, five years for forging the indorsement on

the back, and a larceny conviction that included another five

years of potential confinement.    For Pauling’s scheme to forge

and cash the 16 checks he was charged with four felonies and

exposed to 110 years of confinement.

    In my view, this three-fold multiplication of Pauling’s

punitive exposure exaggerated his criminality, unreasonably

increased his punitive exposure, and constituted overreaching in

the charging process.   Under the circumstances of this case,

charging forgery twice, once for the maker and once for the

indorser, constitutes piling-on.

    I would set aside the finding of guilty of Specification 1 of

Charge III, and affirm the remaining findings of guilty and the

sentence.




                                   4
United States v. Pauling, No. 02-0603/AR


Judge BAKER (dissenting):

      I respectfully dissent for the following reasons.

                     Multiplication of Charges

      Like Judge Erdmann, I would decide this case on the

ground that Appellant was subjected to an unreasonable

multiplication of charges.       Appellant stole 16 checks from

Sandoval and forged Sandoval’s name as the drawer on all 16

checks.   He made himself the payee on 12 of the checks and

made his estranged wife the payee on four of the checks.

On those checks that designated his wife as the payee,

Appellant signed his wife’s name on the back of the checks

and then cashed the checks.       Appellant’s wife was not aware

of his fraudulent acts.

     The only thing creative about this case was the

Government’s charging scheme.          With respect to the four

checks for which Appellant made his wife the payee and

forged her signature as the indorser, the Government

charged Appellant with “double forgery,” forgeries for the

front of the checks and separate forgeries for the back of

the checks.    As a result, Appellant was potentially exposed

to an additional 20 years of confinement for a total of 115

years of confinement.      I believe 95 years exposure

addressed Appellant’s wrongdoing in stealing and forging 16

checks in the amount of $5,075.         Although the military


                                   1
United States v. Pauling, No. 02-0603/AR


checks in the amount of $5,075.        Although the military

judge considered the four “double forgeries” multiplicious

for sentencing purposes, the Government’s charging scheme

nonetheless exaggerated the criminality at issue.

                           Double Forgery

     My view on the unreasonable multiplication of charges

is reinforced by my skepticism that this is the case on

which to substantiate a theory of “double forgery.”         I am

not persuaded Appellant committed a separate offense under

the Uniform Code of Military Justice when he signed his

wife’s name as the indorser on four checks upon which he

had already forged the drawer’s signature.

      The elements of forgery under Article 123, UCMJ, 10

U.S.C. § 923 (1994) are:

      (a)       that the accused falsely made or altered a
                certain signature or writing;
      (b)       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
      (c)       that the false making or altering was with
                the intent to defraud.

      The majority has premised its conclusion on the notion

that Mrs. Pauling incurred an apparent legal liability

because “under the law of the jurisdiction where the checks

were negotiated, the indorser is obligated to pay a check’s

face amount in the event of dishonor.”       ___ M.J. ___


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United States v. Pauling, No. 02-0603/AR


Further, according to the majority, “[t]he risk that such

an obligation will arise is particularly high where a check

bears a forged drafter’s signature, thus providing a basis

for its dishonor.”     Id. at ___.     However, I am not

convinced the Colorado Commercial Code considers the forged

signature of Mrs. Pauling an indorsement for liability

purposes.    Secondly, I am not convinced she would have

incurred an apparent legal liability if her indorsement on

these checks were genuine and she was not complicit in the

forgery scheme.     We must keep in mind that if the wife’s

signature were genuine, it would still be a genuine

signature on a stolen and forged instrument.

      A.    Mrs. Pauling’s forged signature

      As the lead opinion notes, the Colorado Commercial

Code states “. . .if an instrument is dishonored, an

indorser is obliged to pay the amount due on the

instrument. . . according to the terms of the instrument at

the time it was indorsed.”       C.R.S. § 4-3-415.   However,

this provision must be read in light of the Colorado Code’s

treatment of unauthorized signatures.       Under the Colorado

Code, an indorsement means “a signature, other than that of

the signer, drawer, or acceptor, that. . . is made on an

instrument for the purpose of (i) negotiating the

instrument, (ii) restricting payment of the instrument, or


                                   3
United States v. Pauling, No. 02-0603/AR


(iii) incurring indorser’s liability on the instrument.”

C.R.S. § 4-3-204.     Under the section entitled “Signature,”

the following is found: “A person is not liable on an

instrument unless. . . the person signed the instrument.”

C.R.S. § 4-3-401.     The comment to this section states:

“Obligation on an instrument depends on a signature that is

binding on the obligor.”       And “[s]ignature includes

indorsement.”    C.R.S. § 4-3-401 Comment.     Furthermore, § 4-

3-403 states that “[u]nless otherwise provided in this

article or article 4 of this title, an unauthorized

signature is ineffective except as the signature of the

unauthorized signer in favor of a person who in good faith

pays the instrument or takes it for value.”       C.R.S. § 4-3-

403.   An unauthorized signature is defined in § 4-1-201 as

including a forgery.      In essence, a forgery is effective

only as the signature of the forger.

       In this case, assuming as the majority does, that the

reason for dishonor would be discovery of the forgery, Mrs.

Pauling would not have been considered an indorser because

her signature was unauthorized.        Thus, the Colorado Code

imposed no liability on her under § 4-3-415, apparent or

otherwise, in the event of dishonor.




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United States v. Pauling, No. 02-0603/AR


      B.   If Mrs. Pauling’s signature were genuine

      Even if Mrs. Pauling’s signature were genuine, it

would not have exposed her to an apparent legal liability

or changed her legal rights or liability to her prejudice.

See Article 123, UCMJ.      Under the Colorado Code and its

uniform counterpart, there are several possible scenarios

that might arise relevant to Mrs. Pauling’s apparent

liability if her indorsement was considered genuine on a

check that otherwise contained the forged signature of the

drawer.

      (1) Assume for the moment that Mrs. Pauling was a good

      faith holder and genuine indorser of a check with a

      forged drawer signature.         Further, assume she

      deposited the check in her bank and Sandoval’s bank

      (drawee bank) subsequently paid the check.        Under § 4-

      3-418 of the Colorado Code, if the drawee bank

      mistakenly paid the check over the forged signature of

      the drawer, the drawee bank could possibly seek to

      recover the amount paid on an equitable theory of

      unjust enrichment.     However, this would only be true

      as long as the wife had not changed her position in

      reliance on the payment.         C.R.S § 4-3-418(c).   Under

      paragraph 48(c)(4) of the Manual for Courts-Martial

      regarding apparent legal efficacy, “the writing must


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United States v. Pauling, No. 02-0603/AR


      appear either on its face or from extrinsic facts to

      impose a legal liability on another.”         So, while in

      theory the drawee bank could seek a remedy “in

      equity,” this is certainly not apparent on the face of

      the writing.    It seems clear that in such a case, the

      Colorado Code affords the drawee bank no remedy “at

      law” stemming from any legal liability on the part of

      Mrs. Pauling.    Moreover, the record in this case

      suggests the actual facts are even different from the

      hypothetical just posed.         Here, after signing his

      wife’s name, Appellant actually cashed the checks and

      received payment.     Therefore, no party could even

      recover in restitution from Mrs. Pauling because she

      never received the benefit of the fraudulent payments.

      (2) Mrs. Pauling could potentially incur liability if

      her failure to exercise “ordinary care” “substantially

      contribute[d]” to the making of the forged signature.

      C.R.S 4-3-406 comment 4; James J. White & Robert S.

      Summers, Uniform Commercial Code § 16-3(b) (5th ed.

      2000).   Again, it is not apparent on the face of the

      writings, nor, is there any indication in the record

      to suggest that Mrs. Pauling knew of, had reason to

      know of, or was complicit in the fraudulent acts of

      Appellant.


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United States v. Pauling, No. 02-0603/AR


      One thing is clear, under the Uniform Commercial Code

(UCC) and Colorado law, the relationships and

responsibilities of payees, drawers, indorsers and holders,

are sufficiently complex that in a case like Mrs.

Pauling’s, whatever legal liability might arise with

respect to a genuine signature would not be apparent from

her genuine indorsement on a forged instrument.

      If apparent means “manifest” or “palpable” it is not

clear to me that the UCC, as adopted in Colorado state law,

guides one to a manifest conclusion regarding the wife’s

liability if her signature was assumed genuine.    Nor does

it “seem” that Mrs. Pauling would be liable--quite the

contrary.    Therefore, while the wife is clearly a “victim”

of her estranged husband’s conduct in a natural law sense,

I do not believe it is apparent that she would have

incurred any legal liability in this case.∗     Accordingly,

on the basis of an unreasonable multiplication of charges

and failure to state an offense on the facts of this case,

I would dismiss the specification that alleges separate

forgeries for the four checks bearing the wife’s

unauthorized signature.



∗
 This conclusion is fact specific. I am not suggesting a
forged indorsement can never serve as the basis for a
forgery charge.


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