ACCA Narrowly Construes Art. 123 Forgery in United States v. Wetmore

On 23 July 2020, the ACCA overturned Sgt Wetmore’s conviction forgery (Art 123) for factual sufficiency. Sgt Wetmore had plead guilty at a special court martial to forgery, along with larceny and false official statement. The ACCA found Sgt Wetmore’s plea was not factually sufficient because the document he falsified did not “change a legal right to the government’s prejudice.” The court upheld the sentence and the remaining findings.

The ACCA opinion is available here.

Sgt Wetmore made two material falsehoods. First, when he entered active duty from the reserves in 2016, he lied about being married in order to obtain BAH at a higher rate. Next, when his command was preparing a package for promotion in 2018, they noticed the discrepancy since they believed he was divorced. Sgt Wetmore submitted a divorce decree to his personnel office after changing the date of the divorce to 17 September 2018.

The court focused on the second prong of forgery:

1. that he falsely made or alternated a certain signature or writing
2. That the signature or writing was of a nature that would, if genuine, apparently impose a legal liability on another or change another’s legal rights or liability to that person’s prejudice, and
3. That the false altering was with the intent to defraud.

Specifically, the court found the false divorce decree did not “impose a legal liability on the government or did it change a legal right to the government’s prejudice. Since the document ended Sgt Wetmore’s right to BAH at the “with dependent” rate, it did not change a legal right to the government’s prejudice. The court primarily relied on United States v. Thomas, 25 M.J. 396, 402 (C.M.A. 1988) in narrowly construing Article 123.

The court also relied on United States v. Strand, 20 C.M.R. 13, 19-20 (C.M.A. 1955) wherein an enterprising Marine created a letter supposedly from a judge advocate stating Strand was killed in a car accident, giving the term “ghosting” a whole new meaning. However, the CMA found this act would not sustain a conviction for forgery because the falsehood created no legal rights for any of the parties.

Central to the court's interpretation of Art 123 is the nature of the document and the requirement it create some kind of legal liability. Surely, this document did not create a liability for BAH, it fell short of the requirement of the statute.

While the appellate defense counsel deserves commendation for their advocacy, this seems to read the statute too narrowly. When Sgt Wetmore filed the false divorce document, he extinguished, or at least sought to extinguish, a government right to recover BAH that had been received falsely. It is not required that the prejudiced party realize that their legal rights had been changed at the time of the filing. United States v. Farley, 11 U.S.C.M.A. 730, 732, 29 C.M.R. 546, 548 (1960). At the time of the filing, Sgt Wetmore rightly owed money to the government, and by filing this false document that debt would extinguished, if the document was true.

Also, it is not clear that “changing another’s legal rights” is limited to a pecuniary loss. Does the government have a legal right to pursue good order and discipline since Sgt Wetmore used the document to cover up his criminal wrongdoing? The CAAF may be seeing this case as a certified issue in the future.

Tom Fricton

Military Justice Editor