United States v. Scott, 71-1672.

• Decision Date: 03 April 1972
• Docket Number: No. 71-1672.,71-1672.
• Citation: 457 F.2d 848
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent Jones SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 848 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Jones SCOTT, Defendant-Appellant.

No. 71-1672.

United States Court of Appeals, Tenth Circuit.

April 3, 1972.

E. Edward Johnson, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.

Edward B. Lee, Englewood, Colo., for defendant-appellant.

Before HILL, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Defendant-appellant Scott was found guilty by a jury of the offense of transportation in interstate commerce of a falsely made or forged security, knowing the same to have been falsely made or forged, contrary to 18 U.S.C. § 2314. The defendant contends on this appeal that the evidence fails to establish that the instrument in question was falsely made or forged; that the essential character of the instrument was that of a short or insufficient funds check; and that this type of instrument is not within the ambit of the statute.¹

The government's theory of the case was that appellant and his codefendant, Liston, negotiated this check as part of a scheme to obtain funds from Topeka, Kansas banks. The scheme contemplated the drawing of fraudulent, insufficient funds checks on an Illinois bank account, depositing the checks in savings accounts in Kansas banks, and then withdrawing the funds before the check returned from Illinois.

The evidence established that on August 6, 1969, two persons opened a checking account in the name of Argall Insurance Agency by depositing the sum of $25.00 in the Farmers and Merchants Bank in Highland, Illinois. Subsequently, Liston and Scott opened a savings account in the Topeka State Bank in Topeka, Kansas, using the fictitious names of John Lang and Joseph Larson. In this account they deposited a $3,600.00 check drawn on the account of Argall Insurance Agency at the Highland, Illinois bank. This $3,600.00 check purports to have been drawn by Larry Jones. It was made payable to "cash" and was endorsed by Larry Jones and by J. D. Lang. In fact, the J. D. Lang endorsement was made by Liston in the presence of the teller. It was deposited in the savings account in the Topeka bank. On August 11, 1969, the appellant drew out $3,500.00 in the form of a money order made payable to John Lang.

There were similar transactions coinciding in time. The two defendants opened savings accounts in three other Topeka banks on the same day, August 8, 1969. In each of these accounts they deposited a check identical to the check which was deposited in the Topeka State Bank. In each instance they attempted a withdrawal, but in these instances the tellers refused to allow withdrawal until the deposited check had cleared the Illinois bank. In the Topeka State Bank, a cash withdrawal was also sought. The inexperienced teller refused this but did agree to issue a bank money order in the amount of the withdrawal. All of the deposited checks were returned for insufficient funds.²

Defendant's main contention is that the deposited check which was caused to be transported in interstate commerce was not shown to have been a forgery. The argument is that at most it constituted a short or insufficient funds check and that such an instrument rules the case out as a forged or falsely made instrument within the contemplation of § 2314. This point was preserved by motions for judgment of acquittal and for directed verdict at the end of all of the evidence. There was also objection to the court's instruction on forgery.³

We are thus called on to determine the meaning of the terms "falsely made" and "forged" as these are used in § 2314. This court has previously held that there is no substantial difference in the meaning of these two criteria. Marteney v. United States, 216 F.2d 760 (10th Cir. 1954).⁴ There is, though, authority for the proposition that "falsely made" has to do with use of a fictitious name with fraudulent intent, whereas "forgery" applies only when the name of a genuine obligor is used. Pines v. United States, 123 F.2d 825, 828 (8th Cir. 1942).

We are persuaded that a transaction such as that presented in the instant case is within the scope of § 2314, notwithstanding that a fictitious name was used since it was part of a scheme to defraud. See Kitchens v. United States, 272 F.2d 757, 761 (10th Cir. 1959), in which this court held that the action of endorsing a check with a fictitious name and with fraudulent intent constituted forgery. In the Kitchens case the instrument involved was a government check. Here we have a printed check with the name of a false insurance agency printed on its...