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UNITED STATES v. SEAY

December 19, 1974

UNITED STATES, OF AMERICA, PLAINTIFF,
v.
JOHN G. SEAY, DEFENDANT.



The opinion of the court was delivered by: Foreman, District Judge:

MEMORANDUM AND ORDER

Defendant has waived trial by jury with the consent of the Government pursuant to Rule 23(a), Federal Rules of Criminal Procedure. This matter comes before the Court upon a stipulated statement of facts. Defendant has filed a motion to dismiss the indictment and a motion for judgment of acquittal. The indictment charges him with violating 18 U.S.C. § 2314 in that he caused to pass in interstate commerce a forged check payable to the order of John Seay in the amount of $1883. drawn upon the Southern Illinois National Bank and signed with the fictitious name "Gerald Thomas" as drawer of the check.

The facts, as stipulated, in relevant part, are, as follows:

On June 27, 1972, the defendant used his official position as an accounting officer of State Community College, East St. Louis, Illinois, to cause a check to be signed by proper college officials and drawn upon the State Community College Revolving Fund Account, Auxiliary Services Fund at the First National Bank, East St. Louis, Illinois, payable to "Arco Book Dist." in the amount of $1743. (hereinafter "Check No. 1") This check was not transported in interstate commerce. The next day the defendant opened an account at Southern Illinois National Bank in East St. Louis under the fictitious and assumed name of Arco Book Distributors (hereinafter "Arco"), having a fictitious address of 829 Missouri Avenue, East St. Louis, Illinois. Gerald Thomas, the assumed and fictitious name used by defendant, was the authorized signatory for this account. The $200. initial deposit utilized to open this account was John Seay's personal funds.

On June 29, 1972, defendant deposited Check No. 1 in the Arco account at the Southern Illinois National Bank. The defendant, using the assumed and fictitious name of Gerald Thomas, endorsed the check at the time of the deposit.

On June 30, 1972, the Arco account had a balance of $1,893. Later, on July 3, 1972, the defendant drafted a check, (hereinafter "Check No. 2") payable to the order of John Seay in the amount of $1,883. drawn on the Arco account at the Southern Illinois National Bank, and defendant signed the fictitious and assumed name of Gerald Thomas thereto as drawer of the check. At the time Check No. 2 was drafted, there was a balance of $1,893. in the Arco account at the Southern Illinois National Bank. The defendant then deposited Check No. 2 in his personal account at the Gateway National Bank in St. Louis, Missouri. Shortly thereafter, Check No. 2 was transported from St. Louis, Missouri to East St. Louis, Illinois in normal banking channels.

On July 6, 1972, the Arco account at the Southern Illinois National Bank was debited $1,883. leaving a balance of $10. While $1,883. was debited from the account, no monies, funds or credits debited from the account ever left the Southern Illinois National Bank. The following day, the bank made a reverse entry for the Arco account. The credit balance in the account at the Southern Illinois National Bank was not less than $1,884.55 from July 10, 1972 through August 4, 1972. On August 4, 1972, the defendant made restitution of the funds by executing a draft and voucher drawn upon the Arco account, signed Arco Book Dist., Gerald Thomas, John G. Seay, payable to William G. Matlack, a college official, in the amount of $1743.

Check No. 2, the only check to pass in interstate commerce, is the check which defendant is charged to have transported in interstate commerce in violation of 18 U.S.C. § 2314.

At the outset it is also important to recognize what this case is not. There is no indication that "Gerald Thomas" is an "alias" or a name by which the defendant is regularly called. See, e.g. Berry v. United States, 271 F.2d 775 (5th Cir. 1959). Nor is there any indication that the defendant represented any facts to the Gateway National Bank other than the information on the face of the check.

Defendant is charged with causing to be transported in interstate commerce a falsely made security. The Seventh Circuit recently held that the words "falsely made" and "forgery" as used in § 2314, are substantially synonymous. United States v. Johnson, 504 F.2d 622 (7th Cir. 1974). See also, Greathouse v. United States, 170 F.2d 512, 514 (4th Cir. 1948); Marteney v. United States, 216 F.2d 760, 763 (10th Cir. 1954).

There is a split of authority among the courts on this issue and other courts have held that these two terms are not synonymous. See, e.g. Stinson v. United States, 316 F.2d 554 (5th Cir. 1963); Pines v. United States, 123 F.2d 825 (8th Cir. 1941); United States v. Bales, 244 F. Supp. 166 (E.D.Tenn. 1965). Thus, cases following this view cannot serve as precedent for the Government's position in this action.

The Court, of course, feels bound by the Seventh Circuit's recent pronouncements in Johnson and hence the issue becomes whether a check signed by the defendant with a fictitious name as drawer constitutes a "forged" check.

In dealing with the issue of whether the signing of a fictitious name constitutes a forgery, the decisions generally fall into two different categories depending upon whether one accepts the broad or narrow definition of that term. The annotation at 49 A.L.R.2d 852, at 854 states, as follows:

  "The generally accepted rule is that forgery may
  be committed though the use of a fictitious name,
  . . . . Under the broad definition, forgery may be
  committed by the use of a fictitious name, to
  defraud, so long as the instrument in question has
  a sufficient appearance of validity upon its face
  to enable it to be used to the prejudice of
  another, while under the narrow definition, the
  name signed to ...

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