January 20, 2019

Colorado Court of Appeals: Trial Court Committed Plain Error by Not Giving Unanimity Instruction in Forgery Case

The Colorado Court of Appeals issued its opinion in People v. Wester-Gravelle on Thursday, June 28, 2018.

Forgery—Jury Instructions—Unanimity Instruction—C.R.C.P. 12(b).

Defendant worked as a certified nursing assistant for Interim Healthcare (Interim), which provides in-home care to patients. In 2015, Interim assigned defendant to care for Moseley five days a week for two hours each day. Even though defendant had failed to show for her shift for three weeks, she had submitted weekly shift charts to receive payment for the preceding three weeks. The shift charts showed Moseley’s purported signatures acknowledging that defendant had arrived for her shifts. A jury convicted defendant of forgery, and the court sentenced her to two years’ probation.

On appeal, defendant contended that the trial court erred when it failed, on its own motion, to require the prosecution to elect a single forged shift chart as the basis for the conviction or to give a modified unanimity instruction. The People argued that defendant waived this issue by failing to object to the information under Crim. P. 12(b)(2) and (3), which requires a defendant to raise defenses or objections to an information and complaint within 21 days following arraignment. Colorado law is clear that Rule 12(b) does not require a defendant to object when the error stems from circumstances that are not apparent from the charging document. Here, on its face the charge does not evidence a defect, so Crim. P. 12(b)(2) does not apply. The unanimity issue arose only after the prosecution decided to introduce three different written instruments for the period charged. Therefore, defendant did not waive her claim.

The court of appeals determined that the prosecution’s evidence presented a reasonable likelihood that the jurors may have disagreed on which shift chart constituted the forgery charged. Thus, the court should either have (1) required the prosecution to elect an act on which it relied for a conviction, or (2) instructed the jury that to convict, it had to unanimously agree on the act committed or unanimously agree that defendant committed all of the acts. This error was substantial and obvious.

The conviction was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Holder-in-Due-Course Status Does Not Preclude Forgery Defense

The Colorado Supreme Court issued its opinion in Liberty Mortgage Corp. v. Fiscus on Monday, May 16, 2016.

Negotiable Instruments—Holders in Due Course—Forgery—Ratification—Negligent Contribution.

Respondent Fiscus’s wife forged his name on three powers of attorney and used them to procure a promissory note that was ultimately assigned to petitioner Branch Banking and Trust Company. The note was secured by a deed of trust purporting to encumber property held in Fiscus’s name alone. Branch Banking and Trust claimed holder-in-due-course status under Article 3 of Colorado’s Uniform Commercial Code, and Fiscus raised a forgery defense. The Court of Appeals held that Article 3 does not apply to deeds of trust because they are not “negotiable instruments” as defined in the Code. The Supreme Court held that, even assuming Article 3 applies to such deeds of trust, holder-in-due-course status does not preclude a purported maker from asserting a forgery defense. Thus, because Fiscus had a valid forgery defense, not barred by any negligence or ratification on his part, the Court affirmed the judgment of the Court of Appeals but on different grounds. The Court did not address the negotiability of deeds of trust that secure promissory notes under Article 3.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Forged Check is Not “Of” Bank Into Which it is Eventually Deposited

The Tenth Circuit Court of Appeals issued its opinion in United States v. Powell on Monday, September 22, 2014.

Crosby Powell attracted the attention of federal authorities in 2006 when he deposited stolen checks into his accounts at UMB Bank, Wells Fargo, and TCF Bank. An investigation revealed he had altered payee information or forged endorsements on some of the checks. He was subsequently charged with 11 counts of uttering or possessing forged checks and 17 counts of possessing stolen mail. Powell appealed only the 11 counts of uttering or possessing forged checks, arguing for the first time on appeal that the government’s position that the checks were “of” the bank into which they were deposited was a faulty reading of the statute.

The Tenth Circuit agreed with Powell that the checks were not “of” the depositing organization, but his claims were subject to plain error review since they were not raised in district court. Of the 11 counts, 8 were plainly erroneous, since the checks involved in those counts were not issued by federally insured banks operating in interstate commerce. The Tenth Circuit reversed the convictions regarding these 8 checks.

For two of the remaining three counts, the checks were issued by Wells Fargo, which is a federally insured bank operating in interstate commerce, so the Tenth Circuit found no error in Powell’s convictions and affirmed. The final count was based on two checks, one of which was issued by Wells Fargo and one of which was a U.S. Treasury check. Because one of the checks supporting the count was “of” a federally insured bank, the Tenth Circuit affirmed Powell’s conviction on this count.

The case was affirmed in part, reversed in part, and remanded for further proceedings consistent with the Tenth Circuit opinion.