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