Short v. United States
Short v. United States
Opinion of the Court
A offers B a forged Metro flashpass for ten dollars, seventeen dollars less than its face value. B, knowing the flashpass is a fake,
I.
D.C. Metropolitan Transit Police Officers Spencer and Pecoraro were working undercover on a Metro bus when they saw Theodore Harris show the bus driver what appeared to be a counterfeit flashpass.
Telling Spencer to wait, Short walked twenty feet to a bus shelter and talked with a man who fit the description of the seller given by Harris. This man, appellant McClinton, handed Short a document. Short returned to Spencer, put the document in his hand, and said “Give me $10 for it.” The document was a fraudulent flashpass with a printed value of $27 and the same serial number as the one on the pass displayed by Harris. Spencer asked Short if he had change for a twenty, a request Short conveyed to McClinton. As the latter pulled change out of his pocket, the officers arrested both appellants. McClinton had on his person a counterfeit flashpass, several expired flashpasses, a piece of paper with a note to contact named persons about “D.C. flashpasses,” and a credit card and social security card not in the name of either appellant.
II.
Forgery, which includes uttering, “is a statutory and not a common law crime in the District • of Columbia.” Martin v. United States, 435 A.2d 395, 397 (D.C. 1981). As relevant here, the statute provides:
(a) Fqr the purposes of this subchapter, the term:
(1) “Forged written instrument” means any written instrument that purports to be genuine but which is not because it:
(A) Has been falsely made, altered, signed, or endorsed;
(B) Contains a false addition or insertion; or
(C) Is a combination of parts of 2 or more genuine written instruments.
(2) “Utter” means to issue, authenticate, transfer, publish, sell, deliver, transmit, present, display, use, or certify.
# * * * * * .
(b) A person commits the offense of forgery if that person makes, draws, or utters a forged written instrument with intent to defraud or injure another. [Emphasis added.]
The trial judge accordingly instructed the jury that in order to find appellants guilty it had to find:
1) that the Metro flashpass was falsely made or altered, and that the defendant knew of its falsify;
*912 2) that the defendant “transferred or presented or displayed that flashpass to someone and that the flashpass purported to be genuine”; and
3) that the defendant acted with “the specific purpose to defraud anotherf,] and here the other is alleged to be [MJetro.”
Appellants argue that this instruction was deficient because it did not require the jury to find that the defendant displayed the flashpass to someone “representing that it was true and genuine.” As the trial judge recognized, however, the statute has no such requirement. Before enactment of the current statute in 1982, the uttering statute prohibited “attempts to pass, utter, or publish as true and genuine, any paper ... falsely made or altered” with intent to defraud or injure. D.C.Code § 22-1401 (1981) (emphasis added). The Redbook interpreted this to mean an actual representation of genuineness.
Requiring a representation of genuineness beyond that conveyed by the written instrument would be inconsistent with the additional statutory element of an intent to defraud “another,” without specification. Appellants would require identity between the person to whom the document is presented and the intended victim of the fraud; the instrument cannot be passed to B with intent to defraud C. Nothing in'the statute or legislative history supports this limitation. “Utter[ingj” under the statute was “meant to be broadly construed.” EXTENSION OF COMMENTS, supra note 3. Appellants intended to defraud WMATA by selling forged flashpasses to street buyers who they naturally expected (like Mr. Harris) would attempt to use them to avoid fare payment. Although the falsity of the documents almost certainly would be known to buyers (paying $10 on the street for a $27 pass), the statute by its terms reaches such collusive efforts to cheat Metro of its lawful revenue. The trial judge’s instructions correctly stated the law applicable to appellants’ conduct. The standard Redbook instruction, which is “neither the law nor necessarily a correct statement thereof,” Edelen v. United States, 560 A.2d 527, 529 n. 9 (D.C. 1989), should be changed accordingly.
Appellant McClinton further contends that by not requiring an actual representation of genuineness the judge’s instructions amended the indictment, which alleged that appellants presented a flashpass to WMATA (i.e., to undercover Metro transit officers
Even where a claim of constructive amendment has been preserved, “[a] conviction will be reversed only if the evidence introduced at trial and the judge’s instructions to the jury ‘raise the “substantial likelihood” that appellant may have been convicted of a crime different from that charged by the grand jury.’ ” Johnson, 616 A.2d at 1232 (citation omitted). We perceive no such likelihood in this case.
Affirmed.
. A Metro flashpass allows a rider to prepay the bus fare for a two week period.
. Accordingly, one element of the offense as set forth in the standard instruction was:
2. That the defendant passed or attempted to pass the writing to someone representing it to be true and genuine....
. Extension of Comments on Bill No. 4 — 133: The District of Columbia Theft and White Collar Crimes Act of 1982, submitted by Councilmember David A. Clarke, at 62 (July 20, 1982).
. The indictment does not specify that the defendants presented the pass to WMATA transit police as distinct from say, a WMATA bus driver (presumably the more customary form of uttering), but on the evidence presented it is clear that the grand jury could only have intended to charge the former.
. We reject, finally, appellant McClinton’s argument that the evidence was insufficient to support his conviction.
Reference
- Full Case Name
- Ricardo O. SHORT v. UNITED STATES, Appellee Jerome L. McCLINTON v. UNITED STATES
- Status
- Published