Although the terms "altered" and "counterfeited" are reasonably comprehensible, the same is not true with the terms "falsely made" and "forged, which are very complex under existing case law interpreting 18 U.S.C. § § 2314 and 2315. The term "altered" applies to those situations where a perpetrator changes a material fact on an existing security (e.g., increases the amount from $500 to $50,000, substitutes another name for that of the original payee, etc.). The term "counterfeit" also normally encompasses the unauthorized reproduction of some existing document.
There is a considerable split within the circuits as to the differences between "falsely made" and "forged," with the better view being that they constitute different means or methods of violating the statute. See United States v. Hagerty, 561 F.2d 1197 (5th Cir. 1977); United States v. Tucker, 473 F.2d 1290 (6th Cir. 1973); Stinson v. United States, 316 F.2d 554 (5th Cir. 1963); Pine v. United States, 123 F.2d 825 (8th Cir. 1941). Although there is considerable disagreement as to the type of conduct encompassed within each term (see 4 A.L.R.Fed. 793), there is general agreement that these terms comprehend falsity in the execution or making on the face of the writing rather than falsity of any facts set forth on the face of the writing. In other words, the document was actually issued by a person who was without the authority to so issue or it was issued contrary to his authority to issue. See United States v. Simpson, 577 F.2d 78 (9th Cir. 1978); Streett v. United States, 331 F.2d 151 (8th Cir. 1961). "Forged" generally relates to the unauthorized use of the purported maker's signature while the term "falsely made" relates to any execution of a document drawn on either an existing or non-existing entity where there is no authority to so issue. See United States v. Lipscomb, 546 F.2d 787 (8th Cir. 1975); Pines v. United States, 123 F.2d 825. Hence, when a person fills out a stolen blank money order, he is falsely making the security. See United States v. Smith, 426 F.2d 275 (6th Cir. 1970). As noted previously, there is no minimum monetary value for a falsely made, forged, altered, or counterfeit security or tax stamp.
The following situations have been held not to constitute a violation of that portion of the statute dealing with falsely made or forged securities:
- Where a check is drawn by the maker in his own name on a bank in which he has no funds or no account (i.e., true name check). See Hall v. United States, 372 F.2d 603, 607 (4th Cir. 1967); United States v. Melvin, 316 F.2d 647 (7th Cir. 1963). Hence, insufficient funds check cases are exclusively within the province of state laws. (Note: If the fraudulently obtained property had a value of $5,000 or more and was subsequently transported in interstate or foreign commerce, there would be a violation of the first paragraph of 18 U.S.C. § 2314.)
- Where a fictitious name is used by the drawer, but it is the name by which he generally is known or by which he is known to the payee, and in drawing the check in this manner he does not intend to falsify his identity. See United States v. Greever, 116 F. Supp. 755 (D.D.C. 1953); United States v. Gallagher, 94 F. Supp. 640 (W.D.Pa. 1950).
- Where the signature itself shows the signer is acting in the capacity of agent or trustee. See 41 A.L.R. 229; Gilbert v. United States, 370 U.S. 650 (1962).
- Where a validly executed instrument contains a forged endorsement. See Prussian v. United States, 282 U.S. 675 (1931); United States v. Roby, 499 F.2d 151 (10th Cir. 1974); Streett v. United States, 331 F.2d 151. The Streett case held that the countersignature on a traveler's check is, in effect, a first endorsement and that a traveler's check issued for value to a purchaser does not thereafter become a forged security by reason of the forgery of the purchaser's countersignature. See this Manual at 1324.
A "blank" traveler's check is a security as it has on it all the necessary indicia prior to issuance. Hence, when blank traveler's checks were stolen and a thief subsequently filled in a name (whether his own or someone else's), it has been held that such an instrument was falsely made and forged since the perpetrator lacked the authority to issue the check. See United States v. Law, 435 F.2d 1264 (5th Cir. 1970); United States v. Franco, 413 F.2d 282 (5th Cir. 1969). However, in recent years some traveler's check issuers no longer require that the purchaser sign the checks in the presence of the issuing clerk. Consequently, some traveler's checks are now issued in blank (i.e., no specified payee) and are bearer instruments at the time of issuance. It may be hard to distinguish between traveler's checks stolen before issuance and those stolen after issuance. Moreover, because of change in business procedures, the rationale of the Streett case (18 U.S.C. § 2314 covers only the false making of the instrument, not its false endorsement) and the holder-in-due-course doctrine for bearer securities, courts may be less likely to hold that the false filling in of the payee's signature (i.e., original purchaser) is presently covered by the statute.
[cited in JM 9-61.200]