Uttering and Publishing

This post is about the use of a computer to commit a crime I must confess I hadn’t heard of: uttering and publishing. As Wikipedia explains, “uttering and publishing is a crime similar to counterfeiting. Uttering is the act of offering a forged document to another when the offerer has knowledge that the document is forged.”

The first uttering and publishing case I’m going to talk about is from Michigan, which has a statute that provides as follows: “A person who utters and publishes as true a false, forged, altered, or counterfeit record . . . or other writing . . . knowing it to be false, altered, forged, or counterfeit with intent to . . . defraud is guilty of a felony punishable by imprisonment for not more than 14 years.” Michigan Compiled Laws § 750.249(1). Under the Michigan statute, one can only commit the crime by uttering and publishing one of the documents specified in Michigan Compiled Laws § 750.248, which includes public records, powers of attorney, promissory notes, deeds and “an accountable receipt for money, goods, or other property”. Michigan Compiled Laws § 750.248(1).

Uttering and publishing seems to be an old crime. I was trying to figure out if there is any difference between the terms “utter” and “publish”, but there doesn’t seem to be. To resolve that issue, I had to go to some old cases: In Smith v. State, 79 S.E. 764 (Court of Appeals of Georgia 1913), the court said that if “the accused `uttered’ a forged instrument, he `published’ it”, so they are apparently synonyms. The Arizona Court of Appeals court said the same thing in 1966, so I’m assume it’s still true and is true for the crime defined under the Michigan statute. State v. Singh, 419 P.2d 403 (Court of Appeals of Arizona 1966).

The case we’re concerned with is People v. Cole, 2009 WL 691725 (Court of Appeals of Michigan 2009). Charles Cole was convicted of two crimes: uttering and publishing in violation of the Michigan statute quoted above and using a computer to commit uttering and publishing in violation of Michigan Compiled Laws § 752.796. Section 752.792 is not an uttering and publishing statute as such. Section 752.796(1) makes it a crime to “use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit or solicit another person to commit a crime.” So if Cole used a computer to commit uttering and publishing, he committed a second crime, a violation of § 752.796(1).

After being convicted, Cole appealed to the Michigan Court of Appeals arguing that “the prosecutor presented insufficient evidence to support his conviction” and the trial court erred in denying his motion for a directed verdict of acquittal. People v. Cole, supra. When a defendant files a motion for acquittal, he’s claiming the prosecution hasn’t presented evidence that would allow a reasonable jury to convict him. If the prosecution hasn’t presented evidence a reasonable jury could rely on in convicting a defendant, the court can’t give the case to the jury because there’s no rational way for them to convict and it would be unfair to let them convict someone when the evidence doesn’t support it.

The Court of Appeals began its analysis of Cole’s argument by explaining the law involved in the charges:

The prosecution must establish three elements . . . to prove uttering and publishing: `(1) knowledge on the part of the defendant that the instrument was false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment.’ . . . To prove the offense of using a computer to commit uttering and publishing, the prosecutor must prove: (1) the defendant used a computer, (2) with the intention of committing uttering and publishing. Defendant was convicted of uttering and publishing under an aiding and abetting theory. `[A]nyone who intentionally assists someone in committing a crime is as guilty as a person who directly commits it and can be convicted as an aider and abetter.’ . . . `Aiding and abetting’ describes all forms of assistance to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the . . . crime.’ . . . . An aider and abettor's state of mind may be inferred from the facts . . . including a close association between the defendant and the principal, the defendant's participation in the . . . execution of the crime, and evidence of flight after the crime.

People v. Cole, supra.

As to what Cole did to get himself charged with these crimes, it seems he and Takara Robinson were passing bad checks at a Marathon station: “The Marathon station employees became suspicious of Takara Robinson's check because it matched bad checks they received in the past; however, those checks bore the name `David Clark.’ As they were stalling Robinson and [Cole], the Marathon station employees identified [Cole] as the person who previously presented the checks bearing the name `David Clark.’” People v. Cole, supra.

The Michigan Court of Appeals found that the prosecution had presented sufficient evidence to support his being convicted of uttering and publishing and using a computer to commit uttering and publishing under the prosecution’s aiding and abetting theory:

[Cole] confessed . . . he created the checks on his computer and used the account numbers from a valid check and transposed those numbers onto the checks he printed. The evidence established that [he] knowingly provided assistance to Robinson while she attempted to use the checks. [He] drove [her] to the Marathon station, and after [she] was delayed, [he] entered the gas station with a cover story and twice reached over the counter to retrieve Robinson's check and driver's license. Finally, [Cole] fled . . . and when the police caught them, he and Robinson threw some of the checks he printed out the window. . . . [T]he jury could infer from the facts . . ., including [his] participation in the planning and execution of the crime and . . . flight after the crime, that [he] was guilty beyond a reasonable doubt of using a computer to commit uttering and publishing and aiding and abetting Robinson while she committed uttering and publishing.

People v. Cole, supra.

Why wasn’t it forgery? I’m going to use a Virginia case to explain that. In Bennett v. Commonwealth, 48 Va.App. 354, 631 S.E.2d 332 (Court of Appeals of Virginia 2006), Ira Bennett was convicted of uttering a forged public record based on these facts:

Bennett entered a Virginia Department of Motor Vehicles office . . . to apply for a commercial license. Using the name and identifying information of `Leroy Swann,’ [he] completed and submitted an application for the license. Bennett took the test for a commercial license, but failed. He then amended his application to request a duplicate driver's license. In the processing this application, a DMV clerk had Bennett stand in front of a camera for a photograph and sign a computer screen bearing his digitalized image. Bennett signed the computer screen by forging the signature, `Leroy Swann.’ As a result of forging the signature on the computer screen, the computer generated a duplicate driver's license with the name `Leroy Swann.’

Bennett v. Commonwealth, supra. Bennett left without getting the duplicate license.

Bennett appealed his conviction, claiming the “act of affixing the forged signature to the computer screen could not constitute a forgery and uttering a forged public record.” The statute he was convicted makes it a crime to “forge a public record or utter, or attempt to employ as true, such forged record ... knowing the same to be forged”. Virginia Code § 18.2-168. Bennett admitted forging the name on the computer screen, but said he “was not guilty of uttering the forged document because he did nothing other than sign the . . . name, and did nothing to cause the forged signature to generate the license. Moreover, he never received or used the forged license.” Bennett v. Commonwealth, supra.

The Court of Appeals explained that uttering and forgery are two different crimes.

Forgery `is defined . . .as “the false making . . . with the intent to defraud, of any writing which, if genuine, might . . . be of legal efficacy, or the foundation of legal liability.”’. . . . By contrast, . . . uttering does not require proof the defendant produced or altered a writing. . . . [T[he Supreme Court of Virginia has found uttering to be `an assertion by word or action that a writing known to be forged is good and valid.”’

Bennett v. Commonwealth, supra. It noted that the “definition of `uttering” accepted by Virginia courts contains no requirement that a forged instrument be negotiated”.

The Virginia Court of Appeals upheld Bennett’s conviction:

As part of the procedure to obtain a duplicate license, Bennett was required to stand for a photograph and then sign the computer screen before him. The record contains no evidence that any further action was required of Bennett to complete the process of obtaining the license. After the forged driver's license was produced, the DMV clerk attempted to present it to Bennett; however, he had left and did not accept it. We hold that, in signing the false name on the computer screen and completing the application process, Bennett asserted to the DMV agent that the false name on the screen was good and valid, and he thereby instituted the process that produced the fraudulent license. Uttering was completed simultaneously with the forgery because the forged signature on the electronic screen was being `employed as true’ in order to generate the false public record. The crime of uttering a public record was then complete.

Bennett v. Commonwealth, supra.

It’s interesting to see old crimes applied to the use of new technology. It’s also interesting to realize that if someone signs a false name on a computer screen, they’re simultaneously committing both forgery and uttering a false document/public record.