                                                                   F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                                    PU BL ISH
                                                                   August 9, 2006
                   UNITED STATES CO URT O F APPEALS            Elisabeth A. Shumaker
                                                                   Clerk of Court
                              TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff-Appellee,
 v.
                                                     No. 05-6023
 GR EGO RY VINC ENT H UN T,

       Defendant-Appellant.




        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
            FO R TH E W ESTERN DISTRICT O F O K LAH O M A
                         (D .C. NO. CR-01-61-C)




Susan Dickerson Cox, Assistant United States A ttorney (Robert G. M cCampbell,
United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for
Plaintiff-Appellee.

Robert L. W yatt IV of W yatt Law O ffice, Oklahoma City, Oklahoma (Gloyd L.
M cCoy of M cCoy Law Firm, Oklahoma City, Oklahoma, with him on the briefs),
for Defendant-Appellant.




Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.
      Gregory Hunt was indicted on 65 counts of securities forgery and 41 counts

of money laundering, based on a series of checks he wrote transferring more than

$2 million from his employer’s bank accounts to private accounts under his

control. He used the funds to engage in commodities speculation and to buy

himself a boat. Later, he altered carbon duplicates of the checks to make it

appear they had been written to a different payee. Over the course of two trials

before the district court, he fabricated a document purporting to authorize the

payments, then attempted to bribe a witness to give “beneficial” testimony at trial.

The jury convicted him on all 106 counts, and he was sentenced to serve 63

months in prison and to pay millions of dollars in restitution and forfeiture.

      Despite this series of flagrant deceptions, however, M r. Hunt did not utter

“forged” securities within the meaning of 18 U.S.C. § 513(a), the statute under

which he was charged. M r. Hunt signed the checks using his own true name, and

the instruments explicitly and accurately identified him as an “authorized agent”

of his employer. W hatever else he has done, M r. H unt did not commit forgery.

W ith great reluctance, we must therefore reverse his conviction and remand the

case with instructions to enter a judgment of acquittal.

                     I. Factual and Procedural Background

      M r. Hunt worked as the manager of the Orienta Cooperative Association

(“Orienta”) from April 1990 to February 2000. In that capacity, he had check-

writing authority for two of Orienta’s checking accounts at Cleo State Bank in

                                         -2-
Cleo Springs, Oklahoma. His name appeared on the signature cards, on file w ith

the bank, for Orienta’s general operating account and grain purchase account. So

far as the bank was concerned, M r. Hunt enjoyed unlimited check-writing

privileges.

      Privately, however, Orienta placed a number of limits on M r. Hunt’s

authority to write checks as its agent. M r. Hunt was authorized, for example, “to

buy and sell grain,” App. 465, to “buy and sell merchandise for the organization,”

id., and “to pay the legitimate bills” of the cooperative, id. at 468. Yet according

to all seven individuals who served as members of Orienta’s board during the

relevant period, M r. Hunt was not authorized to withdraw funds for purposes of

hedging or speculating in agricultural commodities on behalf of Orienta.

      Between M arch 1997 and December 1999, M r. Hunt wrote a series of 65

checks totaling $2,014,482.55 drawn on Orienta’s bank accounts. All 65 checks

listed Orienta’s name and address and were signed in ink by M r. Hunt, using his

own signature on a line labeled “AUTHORIZED SIGNATURE.” App.

1246–1373. The first 5 were payable to “B& H Special” and the remaining 60

were payable to “B-H Inc.” Neither payee was a legitimate creditor of Orienta.

      All but two of the checks were deposited in a “B& H Special” account at the

First National Bank of Thomas in Thomas, Oklahoma, controlled by M r. Hunt and

his nephew , Bruce Brinson. (The “B” and “H ” stood for Brinson and Hunt.)

W henever the First National Bank of Thomas contacted the Cleo State Bank to

                                         -3-
verify the sufficiency of funds in Orienta’s accounts, providing the account

number, check number, date, and M r. Hunt’s name as the person who signed the

check, the Cleo State Bank responded that “it was okay” and “that it was a true

check.” Id. at 917. M r. Hunt used the other two checks, which totaled $71,500,

to purchase a $60,000 cashier’s check for deposit in a commodities investment

account at R.J. O’Brien, and deposited the $11,500 balance in the B& H Special

account. Although the checks themselves were never altered, at some point pink

carbon copies of some checks written to “B-H Inc.” were altered to list the payee

as “B-K Inc.”— the name of a former customer of Orienta.

      For trial, the government produced a summary of all activity in the B&H

Special account between M arch 1997 and February 2000. Almost all of the more

than $2.09 million deposited in the account came from Orienta; the only other

sources of funds were approximately $112,000 in deposits from an account at

Archer D aniels M idland Investor Services (“A DM IS”) and $26,000 in transfers

from M r. H unt’s personal account at the First National Bank of Thomas.

M eanwhile, M r. Hunt used the account to transfer more than $1.58 million to the

ADM IS account and more than $142,000 to the R.J. O’Brien account for purposes

of commodities hedging and speculation. Those transactions served as the basis

for the 41 counts of money laundering in the indictment. He also transferred

nearly $340,000 to his personal account, and wrote smaller checks w orth

thousands of dollars to his nephew and other family members. In April 1997, he

                                        -4-
used the account to buy himself a Glastron boat, 115 horsepower engine, and

trailer, at a cost of more than $15,000. A year later he used the account to make a

$1,500 donation to the Kappa Alpha Order, and in October 1998 he used it to

make a $4,500 purchase at Sander Sporting Goods & ATVs.

      M r. Hunt’s first trial took place in June 2001. He admitted using Orienta

funds to hedge and speculate in commodities, but defended on the ground that the

Orienta board of directors had authorized him to do so. United States v. Hunt, 62

Fed. App’x 272, 274 (10th Cir. Apr. 3, 2003) (unpublished). Indeed, he claimed

that the board had entered a written trading agreement authorizing him to invest

on Orienta’s behalf and to collect a 10% commission for himself, but that the

document must have been stolen during a burglary of his home. The jury

convicted him on all 106 counts. He was sentenced in November 2001 to 70

months in prison, more than $2.1 million in restitution, and more than $1.6

million in forfeiture. M r. Hunt did not serve any time, however, because the

district court granted his motion for release pending appeal.

      In September 2003, M r. Hunt moved for a new trial based on newly

discovered evidence. Attached to the motion was a document entitled

“TRADING CONTRACT,” dated M arch 15, 1994 and signed by the President and

Secretary of the Orienta board of directors, purporting to “grant permission and

authorize M anager Greg Hunt to trade futures commodities on behalf of the

Orienta Cooperative A ssn.” App. 2322. M r. Hunt claimed to have found the lost

                                        -5-
document in a dusty vinyl portfolio wedged in the back of a filing cabinet in his

home. W ithin three days, a forensics expert determined that neither official had

in fact signed the “trading contract,” and that the signatures had been photocopied

from other documents. W ith the deception exposed, the district court granted a

motion by M r. Hunt to withdraw the request for a new trial. 1

      In M arch 2004, the district court granted a motion by M r. Hunt to vacate

his sentence pursuant to 28 U.S.C. § 2255. M r. Hunt argued that he received

ineffective assistance of counsel at trial because his attorney, W ayne Fournerat,

had solicited O rienta stockholders to join a class-action shareholder suit against

M r. Hunt and members of the O rienta board. Some time before trial, M r.

Fournerat had discovered the existence of annual errors and omissions insurance

policies, each with a limit of $5 million, that appeared to cover M r. Hunt’s

wrongdoing. By collecting on policies from several consecutive years, M r.

Fournerat believed he could win the class an award “into the tens of millions,”

and he undoubtedly realized that a guilty verdict for M r. Hunt would greatly



      1
        M r. Hunt points out that “[t]here was no evidence that M r. Hunt created
the [falsified] document.” Appellant Hunt’s Opening Br. 53–54 & n.2. Yet the
original motion, submitted by M r. Hunt through counsel, described at length the
manner in which M r. Hunt supposedly made the serendipitous discovery of the
document. The document also corroborated M r. Hunt’s ow n testimony at the first
trial concerning the existence of such a document. The district court ultimately
found enough evidence of M r. Hunt’s involvement to admit the phony document
as probative of consciousness of guilt. Reciting the facts in the light most
favorable to the government, as we must following a guilty verdict, we assume
that M r. Hunt played a role in the fabrication.

                                         -6-
assist the shareholder suit. Order of M ar. 5, 2004, at 7. The district court found

that M r. Fournerat “operated under an actual conflict during the trial and that

conflict actually affected the adequacy of his representation.” Id. at 11. It

therefore granted M r. H unt a new trial.

      M r. Hunt’s second trial took place in September 2004. This time M r. Hunt

elected not to testify. As part of its case-in-chief, the government introduced

evidence of the altered pink carbon copies of the checks and the fabricated trading

contract with photocopied signatures. In addition, a member of the O rienta board

named John W arfield testified that M r. Hunt approached him before the second

trial and offered him a bribe, assuring him that he would be “well compensated or

well paid” if he could “give any testimony that would be beneficial.” App. 670.

The district court immediately sustained an objection under Rule 404(b) of the

Federal Rules of Evidence on the ground that the prosecution had failed to

properly notify the defense of that line of questioning, and instructed the jury to

disregard the statement.

      Once again, M r. Hunt was convicted on all 106 counts. His second

sentence called for a slightly shorter prison term of 63 months, but included the

same multimillion dollar restitution and forfeiture penalties as the first sentence.

Also, once again, the district court granted M r. Hunt’s motion for release pending

appeal. M r. Hunt indicated that he planned to appeal, in part, on the ground that




                                            -7-
he had not committed forgery within the meaning of 18 U.S.C. § 513(a). In its

ruling, the district court explained:

      I think there is a plausible argument, at the least, that the defendant
      was charged under the wrong statute, and it certainly caused a lot of
      work in my chambers. . . . I think [my decision is] supported by the
      case law but I think there is, at the least, a very plausible argument to
      the contrary. . . . Because of the impact of the ruling on the
      appropriate statute, which, of course, would vitiate the entire
      conviction in this case if [M r. Hunt] is right, and because of the
      plausibility of that argument, and I don’t want to say probability, but
      it is not a specious argument; it is one [as to which] I think legal
      minds could differ, and I am going to permit M r. Hunt to be released
      on bail pending appeal.

Id. at 1243.

      M r. Hunt now appeals, bringing seven challenges to his conviction: (1) that

the checks did not qualify as “forged” securities under § 513(a); (2) that the

evidence was not sufficient to prove that M r. Hunt harbored “intent to deceive

another person”; (3) that the conviction depended on an impermissible

constructive amendment to the indictment; (4) that the evidence was not sufficient

to convict M r. Hunt of money laundering because he did not engage in the

underlying forgery; (5) that evidence of M r. Hunt’s attempt to bribe a w itness

deprived him of a fair trial, even though it was excluded; (6) that evidence of the

fabricated “trading contract” deprived M r. Hunt of a fair trial; and (7) cumulative

error. He also raises a Sixth Amendment challenge to his sentence.




                                         -8-
                                  II. Discussion

      A short list of M r. Hunt’s apparent crimes would appear to include

embezzlement, various species of fraud, and repeated and brazen obstruction of

justice. Yet federal prosecutors elected to charge M r. Hunt with uttering “forged

securities” in violation of 18 U.S.C. § 513(a). App. 28. This case therefore turns

on whether a check written by an agent with check-writing authority, and signed

by the agent using his own name, qualifies as “forged” under § 513 because the

agent exceeded the bounds of his contractual authority with the principal. The

government concedes that if M r. Hunt did not violate the forgery statute, his

conviction must be reversed in its entirety. The 41 counts of money laundering

depend on some underlying unlawful activity, see United States v. Rahseparian,

231 F.3d 1257, 1264 (10th Cir. 2000), and forgery is the only other crime with

which M r. H unt was charged.

      The statute provides:

      [W ]hoever makes, utters or possesses a forged security of a State or
      political subdivision thereof or of an organization, with intent to
      deceive another person, organization, or government shall be fined
      under this title or imprisoned for not more than ten years, or both.

18 U.S.C. § 513(a). For purposes of the section, the term “security” includes

checks. Id. § 513(c)(3)(A). The statute also defines “forged”:

      [T]he term “forged” means a document that purports to be genuine
      but is not because it has been falsely altered, completed, signed, or
      endorsed, or contains a false addition thereto or insertion therein, or
      is a combination of parts of two or more genuine documents.

                                     -9-
Id. § 513(c)(2).

      According to the government, M r. Hunt committed forgery because the

checks w ere “falsely . . . completed” w ithin the meaning of § 513(c)(2): “B & H

was not a legitimate creditor of Orienta, and defendant exceeded his authority in

completing the checks because he was not authorized by the Orienta Board of

D irectors to w rite the checks to B & H Special and use the proceeds to his own

benefit.” Gov’t Br. 8. The government concedes that “[t]here is nothing false

about the ‘content’ of any of the 65 checks,” but maintains that “[t]he checks

could not have been genuinely executed because they reflected no legitimate

payment from the coop that defendant was authorized to make.” Id. at 17–18.

      The term “forged” has a long history and specialized meaning at comm on

law, and we begin our analysis of the statute with reference to that history. W e

then turn to the statutory definition of the term “forged,” which we must construe

in light of the two leading Supreme Court cases on federal forgery statutes,

Gilbert v. United States, 370 U.S. 650 (1962), and M oskal v. United States, 498

U.S. 103 (1990). Finally, we look to the legislative history of § 513, in the form

of a detailed committee report, to clarify the meaning intended by Congress. All

three sources compel the same conclusion: that M r. Hunt did not utter “forged”

securities under § 513(a).




                                        - 10 -
      A. Forgery at Com m on Law

      W hen Congress enacted § 513(a) in 1984, it used the word “forged”— a

term with a rich history at common law. See Comprehensive Crime Control Act

of 1984, Title II, § 1105(a), Pub. L. No. 98-473, 98 Stat. 1837, 2144 (originally

codified at 18 U.S.C. § 511). Under such circumstances, “we begin our

interpretation of statutory language w ith the general presumption that a statutory

term has its common-law meaning.” Scheidler v. Nat’l Org. for Women, Inc., 537

U.S. 393, 402 (2003). W e therefore find it “important to inquire . . . into the

comm on-law meaning of forgery at the time the [1984] statute was enacted.”

Gilbert, 370 U.S. at 655.

      Historically, forgery was defined as “the false making, with the intent to

defraud, of a document which is not what it purports to be, as distinct from a

document which is genuine but nevertheless contains a term or representation

known to be false.” United States v. Price, 655 F.2d 958, 960 (9th Cir. 1981)

(Kennedy, J.). In the paradigmatic case of forgery at common law, the instrument

“is not what it purports to be” because it purports to be written by someone who

did not actually write it. Greathouse v. United States, 170 F.2d 512, 514 (4th Cir.

1948) (calling it “well established” that forgery “contemplates a writing which

falsely purports to be the writing of another person than the actual maker”).

Thus, common-law forgery did not extend to “[t]he mere false statement or




                                         - 11 -
implication of a fact, not having reference to the person by whom the instrument

is executed.” Commonwealth v. Baldwin, 77 M ass. (1 G ray) 197, 198 (1858).

      As a consequence, the common-law definition of forgery excluded so-

called “false agency endorsements,” in which an agent endorses an instrument on

his principal’s behalf, and signs his own true name, but lacks actual authority to

make the endorsement. Gilbert, 370 U .S. at 657 (considering several English

authorities to the contrary, but finding them not representative of the common-law

view of forgery). The agency endorsement rule had its origin in an English case,

Regina v. White, 175 Eng. Rep. 167, 170 (K.B. 1847), which held that “indorsing

a bill of exchange under a false assumption of authority to endorse it per

procuration, is not forgery, there being no false making.” The idea is that

endorsement by an agent who lacks actual authority “inferentially state[s] an

untruth,” by “imply[ing] that [the agent] had authority to indorse his employer’s

name to the checks so indorsed and receive the proceeds thereof,” but that the

writing itself “was not falsely made, in that it purported to be anything different

from what it actually was.” Dexter Horton Nat’l Bank of Seattle v. U.S. Fid. &

Guar. Co., 270 P. 799, 801 (W ash. 1928). The underlying wrong is “not . . .

forgery, but a breach of trust.” Abbott v. Rose, 62 M e. 194, 201 (1873). The rule

enjoyed, and continues to enjoy, overwhelming support in the common-law




                                        - 12 -
decisions of federal and state courts. See G ilbert, 370 U.S. at 655–56; Selvidge v.

United States, 290 F.2d 894, 895–96 (10th Cir. 1961). 2

      Although it was most often applied to false “agency endorsements,” the

rule followed from the broader comm on-law principle that “[a] false assertion of

authority to write another’s name, or to sign his name as agent, by which a person

is deceived and defrauded, is not forgery.” Bendit, 43 P. at 901. The rule

therefore applies not only to endorsements but to any form of unauthorized

execution, see, e.g., Kinder, 290 S.W . at 130 (making and signing of a check),

and to both express and implied assertions of authority to act on behalf of

another, see, e.g., Dexter Horton, 270 P. at 801 (“directly or by inference”);



      2
        See also Greathouse, 170 F.2d at 514; In re Tully, 20 F. 812, 814–15
(C.C.S.D.N.Y. 1884); Int’l Fin. Corp. v. People’s Bank of Keyser, 27 F.2d 523,
526 (N.D. W . Va. 1928); People v. Cunningham, 813 N.E.2d 891, 895 (N.Y.
2004) (“Defendant did not commit forgery merely by exceeding the scope of
authority delegated by the corporation.”); Nobles v. M arcus, 533 S.W .2d 923, 926
(Tex. 1976); Tiarks v. First Nat’l Bank of M obile, 182 So. 2d 366, 372–73 (Ala.
1966); Pasadena Inv. Co. v. Peerless Cas. Co., 282 P.2d 124, 125 (Cal. Ct. App.
1955); M allory v. State, 168 S.W .2d 787, 789 (Tenn. 1943); State v. Lamb, 152
S.E. 154, 155 (N.C. 1930); Graham v. State, 51 S.W .2d 369, 373 (Tex. Crim.
App. 1930); Dexter Horton Nat’l Bank of Seattle, 270 P. at 801; Schulte v. State,
271 P. 1045, 1048 (Okla. Crim. App. 1928); State v. Kinder, 290 S.W . 130, 131
(M o. 1926); Goucher v. State, 204 N.W . 967, 968 (N eb. 1925); State v.
Alexander, 236 P. 542, 543–44 (M ont. 1925); Barron v. State, 77 S.E. 214,
217–18 (Ga. Ct. App. 1913); People v. Bendit, 43 P. 901, 901 (Cal. 1896); State
v. Taylor, 16 So. 190, 190 (La. 1894); State v. Wilson, 9 N.W . 28, 30 (M inn.
1881); People v. M ann, 75 N.Y. 484, 484 (1878); Abbott, 62 M e. at 201; Baldwin,
77 M ass. (1 Gray) at 198. This Court also has recognized the related point that,
at comm on law, forgery relates to “genuineness of execution,” rather than the
truth or falsity of contents. M arteney v. United States, 216 F.2d 760, 763 (10th
Cir. 1954).

                                        - 13 -
Baldwin, 77 M ass. (1 Gray) at 198 (“statement or implication”). In Alexander,

236 P. at 543, for example, the vice president and cashier of a bank were

authorized to issue traveler’s checks, but “only upon receiving for each check so

sold the full amount for which it was made payable.” In violation of their

instructions and intending to commit fraud, they filled out a $20 check payable to

a customer and signed their own names, even though they had not received

payment. Id. Because “the traveler’s check in question was just what it

purported to be” and the men “were authorized to sign for the bank,” their sole

“wrongful act consisted in delivering the check to [the customer] without

collecting the specified amount,” thereby “violat[ing] their instructions and

abus[ing] their authority.” Id. at 544. “However reprehensible their act,” the

court held, “it did not constitute forgery within any recognized definition of the

term.” Id. at 545.

      One powerful reason for distinguishing between forgery and other breaches

of trust is that the bank, not the account holder, generally bears the risk of loss for

paying on a forged instrument. That rule originated in another celebrated English

decision, Price v. Neal, 97 Eng. Rep. 871, 871 (K.B. 1762), in which the forger

already had been hanged, and the court was left to determine whether the drawee

could recover the value of two payments he made on forged bills of exchange.

Lord M ansfield, writing for the court, held that the drawee could not recover

because he was in the best position to detect the forged signature of one of his

                                         - 14 -
account holders: “[i]t was incumbent upon the plaintiff, to be satisfied that the

bill drawn upon him was [in] the drawer’s hand, before he accepted or paid it.”

Id. at 872 (internal quotation marks omitted). The rule of Price v. Neal “was

adopted wholeheartedly in the nineteenth century in almost all American

jurisdictions,” and today both at common law and under the Uniform Commercial

Code (U CC), banks bear the risk of loss for paying on forged instruments.

Christopher M . Grengs & Edward S. Adams, Contracting Around Finality:

Transforming Price v. Neal from Dictate to Default, 89 M inn. L. Rev. 163,

172–79 (2004); see UCC § 4-401(a) & cmt. 1 (2002) (“An item containing a

forged drawer’s signature or forged indorsement is not properly payable.”).

      Holding banks liable in cases of forgery would make no sense, however, if

any check signed by an agent w ithout actual authority qualified as “forged.” A s

one court warned: “To hold the certificate in this case was a forgery because of an

alleged excess of authority on the part of the cashier to issue, would be to strike a

deathblow to the law of negotiable instruments.” Int’l Fin. Corp., 27 F.2d at 528.

Banks typically do not know, and cannot easily ascertain, whether an agent

privately has received authorization to act on behalf of his principal. Id. at 529

(asking, rhetorically, whether a bank must “visit the [principal] itself, confer with

its officers and directors, consult by-law s and minutes of the board of directors

and of its several committees, in order to ascertain whether there be some want of

authority on the part of the [agent]”). Thus, mindful of the implications for

                                         - 15 -
comm ercial law, 3 courts at common law did not include genuinely executed

instruments, whose sole falsehood is an implied misrepresentation of agency,

within the definition of forgery.

      The common law rarely being neat and uniform, we acknowledge a

competing line of cases holding that “an agent may comm it forgery by making or

signing an instrument in disobedience of his instructions or in the improper

exercise of his authority.” Yeager v. United States, 32 F.2d 402, 402 (D.C. Cir.

1929). W e have previously distinguished many of these cases on their facts. 4 See


      3
        The agency endorsement rule also reflects these concerns, as an account
holder can easily shift liability for false agency endorsements to the bank by
placing a signature card on file for the account. In that case, the bank knows
which agents are authorized to write checks, and acts at its peril— not because of
forgery but because of a contractual agreement— in paying on a check signed by
anyone else. Conversely, the UCC, citing common-law principles, see UCC § 3-
402(a) (2004), makes clear that the account holder, not the bank, is liable for a
check signed by an agent with general check-writing authority who exceeds his
contractual authority in writing that particular check:
       Case #2. X is Treasurer of Corporation and is authorized to write
       checks on behalf of Corporation by signing X’s name as Treasurer.
       X draws a check in the name of Corporation and signs X’s name as
       Treasurer. The check is made payable to X. X then indorses the
       check and obtains payment. Assume that Corporation did not owe
       any money to X and did not authorize X to write the check.
       Although the writing of the check was not authorized, Corporation is
       bound as drawer of the check because X had authority to sign checks
       on behalf of Corporation.
Id. § 3-405, cmt. 3. The UCC, like the common law, does not treat this set of
facts as a case of forgery. See id. § 1-201(b)(41) (defining “unauthorized
signature” as “includ[ing] a forgery”).
      4
        Quick Serv. Box Co. v. St. Paul M ercury Indem. Co., 95 F.2d 15, 15–17
(7th Cir. 1938) (defendant obtained checks already signed by his principal, and
filled in the blanks to obtain the proceeds himself); Yeager, 32 F.2d at 402

                                       - 16 -
Selvidge, 290 F.2d at 895–96 & n.2. Yet a few decisions in this line, including

cases from territorial courts, federal district courts, and some state courts, simply

cannot be reconciled with the prevailing rule concerning false agency

endorsements. 5 Contemporary sources recognized that these decisions w ere badly

outnumbered. See Annotation, Genuine M aking of Instrument for Purpose of

Defrauding as Constituting Forgery, 41 A.L.R. 229 (1926) (describing these cases

as representing a “minority view,” at odds with “the better view . . . supported by

the majority opinion”); State ex rel. Nesbitt v. Liberty Nat’l Bank & Trust Co. of

Okla. City, 414 P.2d 281, 286 (Okla. 1966) (noting that the prevailing rule had

been adopted in “the vast majority of jurisdictions in this country”); Tiarks, 182


(defendant endorsed checks using his employer’s name, not his own, and
deposited them in his own account); In re Clemons, 151 N.E.2d 553, 555 (Ohio
1958) (defendant signed a check using his own name, but purported to draw funds
from a nonexistent, fictitious bank account); People v. Kubanek, 19 N.E.2d 573,
573–74 (Ill. 1939) (defendant obtained checks already signed by his principal, for
payment of her expenses, but filled in the blanks making them payable to
himself); State v. Sotak, 131 S.E. 706, 707 (W . Va. 1926) (defendant signed his
own name and the name of his partner, not as his partner’s agent but side-by-side,
making the check appear to have been signed by both); Kimmel v. State, 156 N.W .
1074, 1075 (Neb. 1916) (defendant had authority to make duplicates of
instruments, imitated the signatures, and passed off the duplicates as originals);
M oore v. Commonwealth, 18 S.W . 833, 833 (Ky. Ct. App. 1892) (defendant
signed the name of the clerk of court, not his ow n name, to a false witness
certificate); State v. Kroeger, 47 M o. 552, 562–63 (1871) (defendant obtained
checks already signed by his principal, added the words “cash or bearer,” and
deposited the funds into his ow n account).
      5
       See People v. Susalla, 220 N.W .2d 405, 406 (M ich. 1974); Territory v.
Forrest, 27 Haw. 209, 211–12 (1923); United States v. Hartman, 65 F. 490, 491
(E.D. M o. 1894); Ex parte Hibbs, 26 F. 421, 432–33 (D. Or. 1886); People v.
Dickie, 17 N.Y.S. 51, 52–53 (N .Y. Gen. Term 1891).

                                         - 17 -
So. 2d at 370 (refusing to adopt the “minority view”); M allory, 168 S.W .2d at 789

(declining to “depart from the majority holding that mere deceit as to agency, or

authority to endorse, does not constitute forgery”); Goucher, 204 N.W . at 968

(noting that “[t]he decisions are nearly unanimous” in favor of the prevailing

rule). Accordingly, in review ing the case law , both the Supreme Court and this

Court have discounted these “scattered” cases, holding instead that common-law

forgery excluded instruments signed by an agent using his own name, but written

in excess of actual authority. Gilbert, 370 U.S. at 658; Selvidge, 290 F.2d at 896

n.2.

       In this case, M r. Hunt’s actions do not fit the common-law definition of

forgery. M r. H unt signed each of the 65 checks using his own true name.

Although the checks “inferentially state an untruth” by implying that M r. Hunt

had been authorized by Orienta to write checks to B& H Special or B-H Inc., they

were genuinely executed, not “falsely made,” because they do not purport to be

anything other than checks written by an Orienta agent. Dexter Horton, 270 P. at

801. The underlying wrong is not forgery, but a breach of trust.

       The district court noted that M r. Hunt signed only his own name, rather

than signing his employer’s name and adding, “by Gregory Hunt, its manager.”

As a result, it concluded, this case differs from Gilbert and Selvidge, where “it

was clear from the four corners of the check that [the check] had been endorsed

by an agent.” A pp. 274. W e accepted a similar argument— essentially, that to

                                        - 18 -
avoid liability the instrument must be signed by an agent, as an agent— in United

States v. Jaynes, 75 F.3d 1493, 1500–01 (10th Cir. 1996) (construing 18 U.S.C. §

510(a)), where the defendant endorsed a series of treasury checks payable to her

deceased grandmother by signing two names, her grandmother’s and her own, and

using a “stylized signature” for one of them. The rule concerning agency

endorsements did not apply, we explained, because nothing on the face of the

check suggested that she had signed as her grandmother’s agent. Id. at 1501. To

the contrary, because the names had been deliberately signed using two different

handwriting styles, “it appeared that they had been endorsed by two different

people.” Id. The forgery in that case was the defendant’s forgery of her

grandmother’s name, not of her own as agent for the grandmother.

      In this case, by contrast, it was unmistakably clear that M r. Hunt had

signed as O rienta’s agent. Each of the checks prominently displayed Orienta’s

name and address, and M r. Hunt signed all sixty-five checks on a signature block

labeled “AUTHORIZED SIGNATURE.” See, e.g., App. 1256. On many of the

checks, Orienta’s name w as reprinted directly above the “authorized signature”

line, reinforcing that M r. Hunt claimed to be “authorized” by Orienta. Further,

M r. Hunt was authorized to write checks on behalf of Orienta; his name appeared

on the signature cards for the two Orienta accounts from which the checks were

draw n. Both banks and all parties to the transactions therefore knew that M r.

Hunt routinely wrote checks as Orienta’s agent for the account numbers listed on

                                        - 19 -
the instruments. See Alexander, 236 P. at 544 (finding no forgery where the

bank’s agents had signed their ow n names, not the bank’s, because they were

“authorized to sign for the bank” but had exceeded the scope of that authority).

Under the circumstances, we cannot agree with the district court that “there was

no indication on the checks that Defendant was acting as an agent.” App. 275.

      Because forgery at common law depends on genuineness of execution, and

does not extend to an agent’s false assertion of authority to act on behalf of his

principal, M r. Hunt did not utter “forged” securities according to the common-law

definition.

      B. “Forged” Securities Under § 513(c)(2)

      Although the common law of forgery supplies important background

interpretive principles, the question in this case is whether the checks signed by

M r. Hunt were “forged” within the meaning of § 513(a). The statute expressly

defines that term in § 513(c)(2): “‘forged’ means a document that purports to be

genuine but is not because it has been falsely altered, completed, signed, or

endorsed, or contains a false addition thereto or insertion therein, or is a

combination of parts of two or more genuine documents.” Particularly where

Congress has supplied its own statutory definition of a term, we cannot presume

that Congress meant simply to codify the common-law meaning. See G ilbert, 370

U.S. at 658–59 (“Of course, Congress could broaden the concept of ‘federal’

forgery by statutory definition.”). To determine the scope of the statute, we must

                                         - 20 -
therefore “look first to its language, giving the w ords used their ordinary

meaning.” M oskal, 498 U.S. at 108 (internal quotation marks and citations

omitted).

      Like the scarecrow in The Wizard of Oz, the Supreme Court decisions

construing federal forgery statutes, Gilbert and M oskal, point in two different

directions. In Gilbert, the Court reversed a conviction under 18 U.S.C. § 495,

which provides for criminal sanctions against “[w ]hoever falsely makes, alters,

forges, or counterfeits” certain writings for purposes of obtaining money from the

United States. Gilbert, 370 U.S. at 659. The defendant, an accountant and tax

preparer, had endorsed two government refund checks by signing the name of his

clients and then signing his own name, “R. M ilo Gilbert, Trustee.” Id. at 651.

According to the clients, the defendant was not authorized to endorse checks on

their behalf. Id. at 652. Noting that “in the absence of anything to the contrary it

is fair to assume that Congress used [the] word [‘forges’] in its common-law

sense,” the Court scoured the common law and determined, notwithstanding

“scattered” authorities to the contrary, that agency endorsements made without

actual authority did not qualify as “forgery.” Id. at 655–58 (adopting the

reasoning of Selvidge, 290 F.3d at 896).

      In M oskal, on the other hand, the Court upheld a conviction under 18

U.S.C. § 2314, which criminalizes the transportation in interstate commerce of

“any falsely made, forged, altered, or counterfeited securities or tax stamps,

                                         - 21 -
knowing the same to have been falsely made, forged, altered, or counterfeited.”

M oskal, 498 U.S. at 106. The defendant had participated in a “title-washing”

scheme in which he received vehicle titles that contained false mileage figures.

Id. at 105. Renouncing any reliance on the common law, the majority held that

the words “falsely made” in the statute “are broad enough, on their face, to

encompass washed titles containing fraudulently tendered odometer readings”

because such titles “are made to contain false, or incorrect, information.” Id. at

108–09, 114. Any other construction would fail “to give any meaning to this

phrase independent of other terms in § 2314, such as ‘forged’ or ‘counterfeited.’”

Id. at 109. Over a vigorous dissent by Justice Scalia, and explicitly rejecting this

Court’s decision in United States v. Sparrow, 635 F.2d 794 (10th Cir. 1980) (en

banc), the majority found that there was no “‘established’ meaning of ‘falsely

made’ at common law” because “there were divergent views on this issue.” Id. at

114–15. M oreover, the majority concluded, a broad reading of “falsely made”

would effectuate C ongress’s purpose by helping to curb interstate trafficking in

fraudulent securities. Id. at 110.

      For several reasons, M oskal does not control the outcome in this case.

First, and most obviously, M oskal involved a different statute and a different

statutory term: “falsely made,” not “forged.” Indeed, the Court in M oskal

adopted an expansive definition precisely because it sought to differentiate

“falsely made” from “forged.” See id. at 109. Second, the facts of M oskal are

                                        - 22 -
readily distinguishable. In M oskal, the vehicle titles were “falsely made” because

they contained express false statements. Id. at 104. Here, by contrast, the

government concedes that “[t]here is nothing false about the ‘content’ of any of

the 65 checks.” G ov’t Br. 17. The government’s own witness testified that M r.

Hunt had written “true check[s].” App. 917. The facts of this case bear a closer

resemblance to those in Gilbert, where the Court held that the defendant had not

comm itted “forge[ry]” because he merely lacked authority to sign checks as an

agent for his clients. Gilbert, 370 U.S. at 659. Third, the definition of “forged”

in § 513(a) uses the words “genuine” and “falsely . . . completed,” as to which

M oskal provides limited guidance.

      Nonetheless, recognizing that M oskal represents the Supreme Court’s latest

pronouncement on the general subject, this Court on at least one occasion has

followed its interpretive approach in construing a federal forgery statute. In

United States v. Cowan, 116 F.3d 1360, 1362–63 (10th Cir. 1997), we held that

18 U.S.C. § 505, which makes it a crime to “forge[]” the signature of a federal

judge, does not contain an “intent to defraud” requirement, notwithstanding the

uniform presence of such a requirement at common law. W e based that decision

on the ordinary meaning of the text of § 505, which contains no intent-to-defraud

language, in stark contrast w ith other criminal statutes in Chapter 25 of Title




                                         - 23 -
18— including twenty statutes and four forgery statutes— that expressly require

“intent to defraud.” Id. at 1363. 6

      W e again undertake a close textual reading here. Section 513(c)(2) defines

“forged” as “a document that purports to be genuine but is not because it has been

falsely . . . completed.” The government contends that the 65 checks were

“falsely completed” because M r. Hunt exceeded his authority: he wrote checks to

B& H Special and B-H Inc., rather than legitimate creditors of Orienta. If the

statutory definition extended to all “falsely completed” securities, we might well

deviate from the common-law definition and accept the government’s position.

Just as documents “made to contain false, or incorrect information” were deemed

“falsely made” in M oskal, 498 U.S. at 109, check blanks filled out so as to

contain false implied assertions of authority arguably are “falsely completed”

within the ordinary meaning of those words.

      But § 513(a) does not treat all “falsely completed” securities as “forged.”

The statute defines “forged” as “a document that purports to be genuine but is not

because it has been falsely altered, completed, signed, or endorsed, or contains a

false addition thereto or insertion therein, or is a combination of parts of two or

more genuine documents.” 18 U.S.C. § 513(c)(2) (emphasis added). The



      6
        W e also noted that “[t]he purpose of § 505 is to protect the reputation and
integrity of the federal courts,” not “to outlaw a narrow category of fraud,” and
held that requiring intent to defraud risked defeating Congress’s purpose. Id. W e
consider C ongress’s purpose in enacting § 513(a) in Part II.C, infra.

                                        - 24 -
definition thus contains tw o requirements: first, the document must “purport[] to

be genuine,” but in fact be non-genuine; and second, the reason for the

document’s non-genuine character must be one of those listed in the statute— for

example, “because it has been falsely . . . completed.” Congress did not need to

add the words “purports to be genuine but is not” if it meant to encompass any

document that is “falsely . . . completed” within the definition. This conclusion is

reinforced by § 513(c)(1), which employs the same structure as § 513(c)(2), and

defines “counterfeited” as “a document that purports to be genuine but is not,

because it has been falsely made or manufactured in its entirety.” U nder both

provisions, a security must be non-genuine; the difference lies only in the reasons

for describing it that way. Cf. United States v. Pullman, 187 F.3d 816, 822–23

(8th Cir. 1999) (rejecting a defendant’s construction of “counterfeited” in §

513(a) because it would effectively collapse the definitions of “counterfeited” and

“forged” in § 513(c)).

      Although the statute defines neither “genuine” nor its opposite, we have no

doubt that the checks written by M r. Hunt qualify as genuine, and therefore not

forged. In ordinary usage, when describing an instrument, “genuine” means

“actually produced by or proceeding from the reputed or alleged source or

author.” W ebster’s Third New International Dictionary 948 (2002) (giving the

examples “a genuine signature” and “a genuine text”). M ore broadly, the term

may apply to “anything that is really what it is claimed or represented to be.”

                                        - 25 -
New Oxford American Dictionary 703 (2d ed. 2005) (usage note) (giving the

example “genuine leather”). “G enuine” is not synonymous w ith “true”; to

describe something as “not genuine” is to denote a particular kind of falsehood,

relating to what the thing is or who produced it. In this case, M r. Hunt signed all

65 checks using his own true name, and he was the actual source or author. The

instruments “purport[] to be” checks written by M r. Hunt as an agent for Orienta,

and that is precisely what they are. Although M r. Hunt exceeded his authority as

Orienta’s manager by writing checks to noncreditors, that fact goes to whether the

instruments are “falsely completed,” not whether they are “genuine.” The checks

therefore do not fit within the statutory definition of a forged security.

      M oreover, common-law forgery cases consistently use the word “genuine”

to refer to genuineness of execution or authorship, not authority to act as an agent

for another. 7 Indeed, the statutory phrase as a whole— “purports to be genuine but



      7
         See Int’l Fin. Corp., 27 F.2d at 526 (holding that an agent “cannot have
committed a forgery in executing and issuing the certificates of deposit in misuse
of his authority, if in fact his signature is genuine, and what it purported to be”);
M allory, 168 S.W .2d at 789 (“The fraud, if any, consisted in inducing confidence
in the validity of the agency, and no intended deceit as to the genuineness of the
instrument itself.”); Dexter Horton, 270 P. at 801 (holding that forgery “excludes
a genuine writing; that is, a writing which is just exactly what it purports to be,”
and that a false agency endorsement did not “purport[] to be anything different
from what it actually was”); Bendit, 43 P. at 901 (“There must be a design to pass
as the genuine writing of another person that which is not the writing of such
other person.”); Wilson, 9 N.W . at 29 (holding that forgery requires an instrument
that is “not genuine— an instrument by which some one has attempted to imitate
another’s personal act,” as opposed to “the doing of something in the name of
another”).

                                        - 26 -
is not”— tracks so closely with the common-law formulation that it appears to

simply codify that aspect of the common-law definition. See, e.g., Ex parte

Finley, 5 P. 222, 262 (Cal. 1884) (noting that forgery requires “a writing— such as

can be the subject of forgery— not genuine, but purporting to be genuine”). Thus,

just as forgery at common law excludes false agency endorsements precisely

because they are “genuine,” the statutory definition of “forged” in § 513(c)(2)

excludes false agency endorsements as “genuine” documents.

      Our interpretation finds support from the only other federal court to

construe the term “forged” in § 513(a). In United States v. Young, 282 F.3d 349,

352 (5th Cir. 2002), the Fifth Circuit found “[n]othing [to] suggest[] that

Congress intended to depart from the settled meaning of ‘forgery’ in enacting §

513.” Surveying the case law and concluding that “[a]t common law and in state

forgery statutes, ‘forgery’ always includes signing one’s own name w ith the intent

of having the signature taken as that of another person with the same name,” the

court upheld a conviction based on those facts under the statute. Id. at 351, 353.

In a footnote, the court even anticipated the facts of M r. Hunt’s case, noting that

because of the common-law rule, there would no violation of § 513(a) “when an

agent signs a company check without actual authority to do so.” Id. at 351 n.1.

      W e agree that the statutory definition of “forged” in § 513(c)(2) does not

deviate meaningfully from the common-law definition. Thus, on a close reading

of the text, the checks written by M r. H unt do not qualify as “forged.”

                                         - 27 -
      C. Legislative History of § 513(a)

      Having concluded that the common-law definition of forgery excludes M r.

Hunt’s conduct and the text of the statutory definition of “forged” is consistent

with that definition, we turn to the legislative history of § 513. W e recognize that

it is not necessary to resort to legislative history when statutory language is

unambiguous. See U nited States v. Prosperi, 201 F.3d 1335, 1343 (11th Cir.

2000) (finding the statutory definition of “counterfeited” in § 513(a) unambiguous

and therefore discounting legislative history to the contrary). But the language of

this statute is sufficiently technical, and the Supreme Court’s interpretations of

similar statutory language in Gilbert and M oskal sufficiently conflicting, that w e

find it useful to examine the legislative history to ensure that our interpretation is

“supported by Congress’s purpose in enacting [§ 513],” as the Supreme Court did

in M oskal, 498 U.S. at 110.

      The legislative history of the Comprehensive Crime Control Act of 1984

says little about § 513, noting simply that the provision “would remedy a gap in

existing statutes relating to the forging of endorsements on United States

securities.” See S. Rep. No. 98-225, at 371–72 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3512–13. Yet it cross-references an earlier Senate committee

report concerning the never-enacted Criminal Code Reform Act of 1981. Id. at

371 n.1, 1984 U.S.C.C.A.N. at 3512 n.1 (citing S. Rep. No. 97-307 (1981) (“the

1981 Senate report”)). Because that report includes a detailed discussion of

                                         - 28 -
language virtually identical to the text of § 513, and the earlier bill “gave impetus

to the enactment of § 513,” United States v. Pebworth, 112 F.3d 168, 172 (4th

Cir. 1997) (M urnaghan, J., dissenting), courts have treated the 1981 Senate report

as the authoritative legislative history of § 513. See Prosperi, 201 F.3d at 1343.

      The 1981 Senate report confirms that Congress did not intend for § 513(a)

to reach instruments signed by an agent using his own name, where the sole

falsehood is an implied assertion of authority to act on behalf of another. First,

the report states unequivocally that “[t]he term ‘genuine’ refers to the validity of

the execution of the written instrument,” S. Rep. No. 97-307, at 776 n.54,

consistent with the ordinary meaning of that term. Second, the report not only

expressly adopts the common-law rule concerning false agency endorsements, but

links that rule to the statutory term “genuine”:

      [Section 513] is not intended to cover ‘false agency’ signatures and
      endorsements and thus continues the rule that the term ‘forgery’ does
      not cover the situation where a person signs an instrument purporting
      on its face to be signed by him as an agent, when, in fact, he has no
      authority to sign such instrument. The reason for not including such
      conduct within this section is that, as the person executing the
      instrument signs his true name, the execution of the instrument is, in
      fact, genuine, unlike forgery where there is no genuine execution.

Id. at 777–78 (footnotes omitted) (citing with approval both Gilbert and

Selvidge). In that situation, the report explains, “the falsity lies not in the

execution of the written instrument but rather in the representation of a non-

existent authority.” Id. at 778. Third, the report states that “[t]he purpose of this



                                          - 29 -
section . . . is the protection of the integrity of written instruments and not the

punishment of fraudulent conduct in general.” Id.

      H ere, all 65 checks w ritten by M r. Hunt were genuinely executed. He

signed them using his own name, and the instruments unmistakably identify him

as an “authorized agent” of Orienta. The falsity of the checks lies only “in the

representation of a non-existent authority.” Id. According to the 1981 Senate

report, Congress consciously elected not to make such conduct punishable as

forgery under § 513. Further, neither of the purposes identified in the legislative

history— closing gaps in federal law against forgery of U.S. securities and

protecting the integrity of w ritten instruments— bespeaks a congressional purpose

to punish embezzlement, breaches of trust, or other “fraudulent conduct in

general” as forgery under § 513(a). Id.

      Because the common law, the text, and the legislative history all compel

the conclusion that the checks were not “forged” w ithin the meaning of § 513(a),

M r. Hunt is not guilty of uttering forged securities as a matter of law. The money

laundering charges, which depend on some underlying unlawful action, also

cannot be sustained. W e need not consider the other issues on appeal.

                                   III. Conclusion

      W e pause to acknowledge our distaste for undoing the conviction of a

defendant twice found guilty of forgery, whose actions undoubtedly violated

numerous fraud and embezzlement statutes, and whose conduct before the district

                                          - 30 -
court included the brazen fabrication of evidence and attempted bribery of a

witness. It is our unhappy duty, however, to reverse the conviction of any

defendant charged under the wrong statute. As the Nebraska Supreme Court

noted in one of the leading common-law forgery cases, “even a knave is protected

in prosecutions under legislative enhancements authorizing punishments for

different species of fraudulent acts such as forgery, obtaining money by false

pretenses, larceny and embezzlement.” Goucher, 204 N.W . at 968. It found, as

we do: “There is no escape from this conclusion.” Id. at 969.

      W e REV ER SE the conviction and REM AND the case with instructions to

enter a judgment of acquittal.




                                       - 31 -
05-6023, United States v. Hunt

BR ISCO E, Circuit Judge, concurring:

      I concur in Parts I, II.B and III of the majority’s opinion, as well as the

judgment. I decline to join Parts II.A and II.C, however, because the

unambiguous language of 18 U.S.C. § 513(a) makes it unnecessary to resort to

review of the legislative history or comm on-law definitions of “forgery.” See

generally Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (“The starting point in

discerning congressional intent is the existing statutory text,” and “when the

statute’s language is plain, the sole function of the courts–at least where the

disposition required by the text is not absurd–is to enforce it according to its

terms”); Hoffman v. Conn. Dep’t of Income M aint., 492 U.S. 96 (1989) (“If

congressional intent is unmistakably clear in the language of the statute, reliance

on committee reports and floor statements will be unnecessary . . . .”).

      W here, as here, we are asked to interpret a statute which contains an

express definition of the term at issue, our task is made easier. And, as the

majority states, “[p]articularly where Congress has supplied its own statutory

definition of a term, we cannot presume that Congress meant simply to codify the

comm on-law meaning.” M aj. Op. at 21. Further, “‘[w]hen the meaning of the

statute is clear, it is both unnecessary and improper to resort to legislative history

to divine congressional intent.’” United States v. Ortiz, 427 F.3d 1278, 1282

(10th Cir. 2005) (quoting Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir.

1986)).
       I am content in this case to rely on the statutory language to determine

whether M r. Hunt committed the crimes charged. W hen the acts committed by

M r. Hunt are reviewed through that lens, the government has failed to establish

the documents at issue here were “forged” as defined by 18 U.S.C. § 513. See

M aj. O p. at 24-26.




                                         -2-
