                         UNITED STATES, Appellee

                                         v.

                     Kody T. WEEKS, Senior Airman
                       U.S. Air Force, Appellant

                                  No. 11-0526
                           Crim. App. No. 37535

       United States Court of Appeals for the Armed Forces

                         Argued January 10, 2012

                          Decided March 12, 2012

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and COX, S.J., joined.


                                     Counsel


For Appellant: Major Daniel E. Schoeni (argued); Colonel Eric
N. Eklund, Major Phillip T. Korman, and Major Grover H. Baxley.


For Appellee: Major Scott C. Jansen (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, and Gerald
R. Bruce, Esq. (on brief).


Military Judge:    Stephen R. Woody


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Weeks, No. 11-0526/AF


       Judge STUCKY delivered the opinion of the Court.

       We granted review to determine whether Appellant’s guilty

plea to a forgery charge was improvident.   We hold that there is

a substantial legal question as to Appellant’s plea because

conduct he admitted did not constitute forgery as a matter of

law:   “Telling a lie does not become forgery because it is

reduced to writing.”   In re Windsor, [1865] 122 Eng. Rep. 1288,

1291 (Blackburn, J., concurring).

                                 I.

                                 A.

       In accordance with his pleas, Appellant was convicted by a

military judge alone in a general court-martial of:   one

specification of disobeying a noncommissioned officer, one

specification of violating a no-contact order, one specification

of larceny, and one specification of forgery, in violation of

Articles 91, 92, 121, and 123, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 891, 892, 921, 923 (2006).   He was

sentenced to a bad-conduct discharge, confinement for fourteen

months, and reduction to E-1.   The convening authority approved

the sentence as adjudged and the United States Air Force Court

of Criminal Appeals (CCA) affirmed.   United States v. Weeks, No.

ACM 37535, 2011 CCA LEXIS 351, at *4, 2011 WL 6010895, at *2

(A.F. Ct. Crim. App. Mar. 30, 2011) (unpublished).




                                  2
United States v. Weeks, No. 11-0526/AF


                                B.

     Sometime before September 2006, Appellant’s cousin and his

cousin’s wife (the Barbers) gave him a check as a gift.     Using

the account information on those checks, Appellant stole

approximately $50,000 from the Barbers’ account by generating

thirty-one checks to pay off his debts at the electronics

retailer, Best Buy.   To generate most of the checks, Appellant

called Best Buy’s automated bill pay system and used his own

name but the Barbers’ account and routing numbers to create

electronic checks that were credited to his balance.

     At trial, the military judge explained the elements of

forgery by uttering according to the Military Judges’ Benchbook.

Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’

Benchbook ch. 3, ¶ 3-48-2(d) (2002).   Appellant told the

military judge he understood the elements and definitions; a

stipulation of fact was admitted into evidence.    The stipulation

explained how Appellant created the checks and, in it, Appellant

specifically stated that he “falsely” made them.   His answers at

the plea inquiry were substantially similar to the stipulation

of fact.   The military judge accepted the pleas, finding they

were knowing and voluntary.

                                C.

     The CCA held that Appellant’s plea to forgery was provident

because he “caused the checks to be falsely made” and because he


                                 3
United States v. Weeks, No. 11-0526/AF


specifically admitted to falsely making and uttering the checks.

2011 CCA LEXIS 351, at *4, 2011 WL 6010895, at *2.

     Appellant argues that his guilty plea was improvident

because his conduct did not meet the elements of forgery as

defined in Article 123, UCMJ.   Specifically, he argues that he

did not make or alter a signature or writing as required by

Article 123, UCMJ, because he took the money by electronic and

telephonic means.    He also argues that even if he made or

altered a signature or writing he did not falsely do so.

     The Government argues that Appellant’s plea was provident

because Article 123’s writing requirement is broad enough to

cover his conduct.   Citing this Court’s precedent, it also

argues that Appellant falsely made the checks within the meaning

of Article 123, UCMJ.   See United States v. Banfield, 37 M.J.

325, 326 (C.M.A. 1993) (finding the accused’s guilty plea to

forgery provident where he signed a fictitious name to thirty-

nine checks and his own name to one).

                                 II.

     This Court reviews a military judge’s decision to accept a

plea of guilty for abuse of discretion.    United States v.

Inabinette, 66 M.J. 320, 321 (C.A.A.F. 2008).    It is an abuse of

discretion for a military judge to accept a guilty plea without

an adequate factual basis to support it.   Id. at 321–22.     It is

also an abuse of discretion if the ruling is based on an


                                  4
United States v. Weeks, No. 11-0526/AF


erroneous view of the law.   Id. at 322.     This Court reviews

questions of law, such as whether Appellant “falsely” made a

check or whether something constitutes a “signature or writing,”

de novo.   Id. at 321; see also United States v. Goodman, 70 M.J.

396, 400 (C.A.A.F. 2011).

     If an accused’s admissions in the plea inquiry do not

establish each of the elements of the charged offense, the

guilty plea must be set aside.    United States v. Gosselin, 62

M.J. 349, 352–53 (C.A.A.F. 2006) (“These conclusory responses to

the military judge’s questions . . . are not sufficient for us

to find Gosselin’s plea provident.      Conclusions of law alone do

not satisfy the requirements of Article 45, UCMJ, and Rule for

Courts-Martial 910(e).” (citations omitted)).

                                 III.

     There are two separate and distinct forgery offenses under

Article 123, UCMJ:    (1) forgery by “making or altering,” and (2)

forgery by “uttering.”   United States v. Albrecht, 43 M.J. 65,

68 (C.A.A.F. 1995) (“[Article 123, UCMJ] does not set out

alternative ways to commit forgery, in the sense of having to

choose; rather, it specifies two conceptually distinct and

different ways to commit forgery so that, in a given factual

context one or the other or both might be violated.”).

Appellant was charged with forgery by uttering, which has the

following elements:


                                  5
United States v. Weeks, No. 11-0526/AF


          (a) That a certain signature or writing was
     falsely made or altered;

          (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;

          (c) That the accused uttered, offered, issued, or
     transferred the signature or writing;

          (d) That at such time the accused knew that the
     signature or writing had been falsely made or altered;
     and

          (e) That the uttering, offering, issuing or
     transferring was with the intent to defraud.

See United States v. Pauling, 60 M.J. 91, 93 (C.A.A.F. 2004)

(citing the elements of forgery in the Manual for Courts-

Martial, United States (MCM) pt. IV, ¶ 48.b.(2) (2002 ed.)).

The first element -- whether a signature or writing was falsely

made -- is the element at issue in this case and is dispositive

as to whether Appellant committed either forgery offense.

                               A.

     Appellant argues that his conduct does not violate Article

123, UCMJ, because the statute requires that an actual

“signature or writing” be falsely made.   The President has not

updated the Manual to include electronic transactions, and the

United States Navy-Marine Corps Court of Criminal Appeals has

held telephonic transactions cannot constitute forgery.   See

United States v. Nimmons, 59 M.J. 550, 552 (N-M. Ct. Crim. App.

2003) (finding a guilty plea improvident where the accused used


                                6
United States v. Weeks, No. 11-0526/AF


information from a fellow Marine’s check to pay bills via

telephone because neither a writing nor a signature was used in

the telephone transaction).

     Unlike the accused in Nimmons, Appellant’s conduct,

although electronic and telephonic in origin, generated tangible

checks that were processed at the victim’s bank -- a fact he

conceded at oral argument.1   Therefore, we find Article 123’s

writing requirement was clearly met in this case because

Appellant’s conduct produced a writing.

                                B.

     Although Appellant made a signature or writing, the crux of

forgery is the false making of the writing.   We conclude that

Appellant did not falsely make a writing -- he used his own name

-- and therefore his guilty plea to the forgery charge was

improvident.

     Article 123, UCMJ, may seem ambiguous as Appellant’s

actions were clearly “false” in the colloquial sense.   However,

falsity in the forgery context is a term of art that developed

in the common law.   See Gilbert v. United States, 370 U.S. 650,

655–59 (1962) (discussing the relationship between the common

1
  As a general matter, we are skeptical that Appellant’s narrow
construction of Article 123’s writing requirement is correct.
Nothing in the Manual implies that electronic or telephonic
transactions cannot constitute a signature or writing within the
meaning of Article 123, UCMJ. In fact, the Manual takes an



                                 7
United States v. Weeks, No. 11-0526/AF


law and federal forgery statutes).    Likewise, to understand the

conception of falsity in Article 123, UCMJ, it is necessary to

examine the role and development of the common law in the

military justice system.

       The military justice system incorporated the common law of

forgery in various ways.   Even before a general prohibition on

forgery was included in the Articles of War, the narrower

proscription of forgery involving certain claims against the

United States invoked proof as employed in cases of forgery at

common law.   William Winthrop, Military Law and Precedents 702

(2d ed., Government Printing Office 1920) (1895).   The general

prohibition came in with the 1920 revision of the Articles of

War.   Article of War 93 (Act of June 4, 1920, ch. 227, 41 Stat.

759, 805 (1920)).   To interpret the provision in the Articles of

War, the 1921 Manual referenced the District of Columbia Code,

which evolved from a number of sources -- including the common

law as it existed in 1776.   A Manual for Courts-Martial, United

States Army ch. XVII, sect. X, ¶ 443, at 436 (1921 ed.); History

of the D.C. Code 1-2 (1929), reprinted in D.C. Code at 1–2

(2001).    The UCMJ specifically incorporated the common law of

forgery when it was adopted in 1950.   Uniform Code of Military

Justice:   Hearings on H.R. 2498 Before a Subcommittee of the



expansive view of what may constitute a signature or writing.
See MCM pt. IV, ¶ 48.c.(3), (4).

                                  8
United States v. Weeks, No. 11-0526/AF


House Committee on Armed Services, 81st Cong. 1233 (1949),

reprinted in Index and Legislative History, Uniform Code of

Military Justice (1950) (not separately paginated) (noting that

the “basic common-law elements have been incorporated”); see

also Charles L. Decker et al., Dep’t of Defense, Legal and

Legislative Basis, Manual for Courts-Martial United States 279

(1951) (“In the case of forgery, the Committee adopted almost

verbatim the common law definition . . . .”).

     “The essential elements of the common law crime of forgery

are ‘(1) a false making of some instrument in writing; (2) a

fraudulent intent; [and] (3) an instrument apparently capable of

effecting a fraud.’”   Vizcarra-Ayala v. Mukasey, 514 F.3d 870,

874 (9th Cir. 2008).   In addition to the common law elements,

the crime of forgery by uttering requires that the accused

somehow uttered the false instrument.    See A Manual for Courts-

Martial, United States Army ch. XVII, sect. X, ¶ 443, at 438

(1921 ed.) (referencing § 843 of the D.C. Code and the elements

of forgery by uttering).   The Manual still references, and this

Court has adopted, these common law elements and definitions.

See MCM pt. IV, ¶ 48.c.(2); United States v. Guess, 48 M.J. 69,

72 (C.A.A.F. 1998) (adopting ¶ 48.c.(2) to interpret Article

123a, UCMJ, 10 U.S.C. § 923a).

     Whether something is a “false instrument” at common law,

and therefore under the UCMJ, depends on whether the falsity


                                 9
United States v. Weeks, No. 11-0526/AF

lies in the representation of the facts or in the genuineness of

the execution.   Gilbert, 370 U.S. at 658.     “Where the ‘falsity

lies in the representation of facts, not in the genuineness of

execution,’ it is not forgery.”    Id.; see also Vizcarra-Ayala,

514 F.3d at 875; MCM pt. IV, ¶ 48.c.(2) (“‘False’ refers not to

the contents of the writing or to the facts stated therein but

to the making or altering of it.”); David A. Schlueter et al.,

Military Crimes and Defenses § 6.8[4][a], at 678 (1st ed. 2007)

(“false recitals of fact in a document do not make the document

a forgery”).   Therefore, “forgery is not committed by the

genuine making of a false instrument even when made with the

intent to defraud.”    MCM pt. IV, ¶ 48.c.(2).

     The distinction between forgery and “the genuine making of

a false instrument” largely depends on whether the accused

impersonates another person.   The classic example of forgery

occurs when an accused, with the intent to defraud and without

authority, signs someone else’s name “to an instrument having

apparent legal efficacy.”    MCM pt. IV, ¶ 48.c.(3).    This

signature is falsely made because it purports to be the act of

someone other than the actual signer.    Id.     Generally, signing

one’s own name to an instrument -- even with the intent to

defraud -- is not forgery.

     This does not mean that this type of conduct escapes

criminal punishment.   Appellant’s conduct is larceny -- an


                                  10
United States v. Weeks, No. 11-0526/AF

offense of which he was convicted.     Additionally, his actions

are similar to conduct charged and upheld by this Court pursuant

to Article 123a, UCMJ.    Guess, 48 M.J. at 70.

     A couple of analogies help to illustrate what is, and what

is not, forgery.    It is not forgery if a person, with the intent

to defraud, signs his own name “as the maker of a check drawn on

a bank in which that person does not have money or credit.”       MCM

pt. IV, ¶ 48.c.(2).   It is not forgery because, although the

check falsely represents the existence of the account, it does

not misrepresent the actual maker of the check and is therefore

not falsely made.   Id.    Similarly, if a person signs another’s

name to an instrument but indicates he has the authority to sign

by adding the word “by” with his own name, it is not forgery,

even if no such authority exists.      Id.; see also Manual for

Courts-Martial, U.S. Army ¶ 180i (1949 ed.).

     In this case, Appellant falsely represented that the

account was his.    However, he did not commit forgery because he

did not impersonate the Barbers, hold the checks out as written

by the Barbers, or otherwise misrepresent the actual maker of

the check -- himself.     The checks were genuine in the forgery

context because they were what they purported to be, checks

drawn by the actual maker.    MCM pt. IV ¶ 48.c.2.    In other

words, Appellant used his own name and information in

combination with the actual routing and account number for the


                                  11
United States v. Weeks, No. 11-0526/AF

Barbers’ existing checking account.    Thus, Appellant defrauded

but did not forge because his conduct can be compared to

circumstances where a person adds the word “by” with his own

name to indicate he had authority to sign on behalf of the

account holders.

                                IV.

     Appellant’s conduct was not forgery because he did not

falsely make or alter a certain signature or writing.2    The

military judge abused his discretion in accepting Appellant’s

guilty plea to the forgery charge because his acceptance of the

plea was based on an erroneous view of the law.     Appellant’s

admissions and conduct could not establish each of the elements

of forgery.   Therefore, his guilty plea to the forgery offense

must be set aside.   Gosselin, 62 M.J. at 352–53.    The findings

of guilty as to the forgery offense are set aside; Charge II and

its specification are dismissed.     We affirm the judgment of the

United States Air Force Court of Criminal Appeals as to the

remaining charges and specifications.    The judgment of the Court

of Criminal Appeals affirming the sentence is set aside. The

record is returned to the Judge Advocate General of the Air


2
  To the extent Banfield suggests that signing one’s own name to
a genuinely made false instrument is forgery, it is incorrect.
See Banfield, 37 M.J. at 328 n.1 (“Even if appellant had signed
his own name to all the travelers checks, his actions might
still be considered forgery. The Circuits have taken different
approaches to resolving this issue.” (citations omitted)).

                                12
United States v. Weeks, No. 11-0526/AF

Force for remand to the Court of Criminal Appeals for

reassessment of the sentence.




                                13
