Virginia Laws on Forgery and Fraud

31 Jan, 2022

ATTORNEY SHERYL SHANE HAS BEEN LICENSED TO PRACTICE LAW SINCE 1994

SHE HAS HANDLED NUMEROUS CASES INVOLVING CRIMES OF DISHONESTY!

IF YOU NEED HELP - IMMEDIATELY TEXT OR CALL 703-718-5533

FORGERY - UTTERING - FRAUD - FALSE PRETENSES

There are a variety of crimes which involve dishonesty. Included in this category are Forgery, Uttering, and False Pretenses. Although these types of crimes do not seem quite as bad as others, there are serious consequences to the victims. When wrongfully taking from an individual - you may deprive that person from paying their bills, deplete his/her savings, and cause severe psychological trauma. When committing this type of crime against corporations, not only are the corporations affected, but so are the Consumers. When corporations are required to hire security and loss prevention specialists - who does that cost get passed onto? When product is stolen, the public pays the price by paying higher prices for services and product. This creates more financial strain which is passed on to all.

Since we know there is a price to pay when crimes of dishonesty are committed, we need to also examine who and what type of people are committing these types of crimes. And why are they committing these types of crimes.

Well, there is no clear answer. Based on this attorney’s 27 years of legal experience, the people who commit these crimes hail from all walks of life. It does not matter the race, age, or economic class one was raised in. All types of persons walk in my office - charged with these types of crimes.

So, Let’s address the general explanations of the elements and meanings of these crimes which we label “Crimes of Dishonesty”. All people should understand the laws of our state and how the laws are applicable to them.

GENERAL FORGERY

I believe that most people when they hear the word “Forgery” - the first thought that comes into their mind is “ the act of crossing out information on another’s check and forging information” in order to accomplish illegal gains. Another type of forgery would perhaps involve forging ones signature on a document involving the transfer of title to property. This may involve a collectors item, an animal, a vehicle, or some type of equipment. And of course we all have heard of forging documents such as drivers license, passports utilizing machinery. These may all be considered acts of forgery.

Now let’s look at what the court looks to when deciding if a defendant has committed forgery.

Perpetrating a Forgery: When a person:

With the intent to defraud
Falsely makes a Writing
Materially Alters Writing
He or she does not have the authority to commit the act(s)
And there is prejudice of another person’s right.

These are elements of the crime that will be addressed when law enforcement, the prosecution, a judge and/or jury review when determine guilt or innocence regarding a forgery charge.

How to determine if one committed the act of Forgery and should be held criminally liable

All crimes are not defined by statute. Yet the public is imputed with the responsibility of knowing and understanding what is legal and that which is illegal. Ignorance of the law is no defense.

Here is some relevant caselaw on Forgery:

“Forgery is the making of a false writing which if genuine, would be apparently of legal efficacy.”

“Forgery is the fraudulent making or altercation of a writing to the prejudice of another persons right”.

Oxford dictionary defines forgery as “the action of forging or producing a copy of a document, signature, banknote, or work of art.

When committing the act of forgery - one is usually committing counterfeit. The person is making or imitating something that is important and has value and intends to fraudulently pass it on to others.

Forgery could be committed singularly or by a group.

We all know and understand what it means to commit a crime alone. But we are not all aware that one may be charged with the crime of conspiracy separate and apart from the charge of Forgery/ Fraud when working as a group. So when the act or acts are committed by more than one - the actors must consider also the additional charge of Conspiracy.

Generally, conspiracy in this area of law is when the accused is charged with:

Entering into an agreement with others;
And that the agreement involved committing a forgery;
And that there was an intent to commit the forgery by the accused and at least one other was a party to the agreement.

When determining Conspiracy - the current law states “ The existence of an agreement may be inferred from the conduct and actions by the alleged perpetrators. The prosecutor is not required to prove there was “an explicit agreement”. The general consensus is that

conspiracies are clandestine in nature; and, therefore, the prosecution may use circumstantial and indirect evidence to prove conspiracy. Overt acts by the accused are taken into consideration. So, in sum, an act of forgery involving two or more persons having the intent to commit the crime may end in at least two charges per person. Forgery, conspiracy, and whatever applicable relevant charges may be involved. Direct evidence on all issues is not necessary.

Also - it is important to note that if one commits or attempt to commit a felony and does not complete the crime - one may also be found guilty of a crime. Current law states that

“ A conspiracy only requires proof of an agreement to commit the crime”. An act in furtherance thereof is not required. A change of mind or a withdrawal is not a defense

when it comes to the crime of conspiracy.

Some factors to address when dealing with Forgery cases:

Materiality;
Extent of Participation by the accused;
Was a party present or absent when the forgery occurred;
Were the writings invalid on their face;
Is the writing of questionable validity;
Did the writing prejudice another or have the possibility of being prejudicial to another;
Can one be convicted of forging a document, uttering (passing it), and of Larceny;
“Wharton’s Rule” regarding forgery and conspiracy;
The type of documents allegedly forged;

Note: Using a computer rather than some other tangible instrument of document is not necessarily a defense to the crime of forgery. People can commit forgery through use of computers.

UTTERING

When a person gets charged with the crime of forgery, he or she almost always obtains a second criminal charge called “Uttering” when attempting to put the forged item into circulation. The two are separate and distinct crimes. If indicted - the defendant can be charged with separate counts, and the defendant may be punished for each offense separately if found guilty. One charge of forgery and the other “Uttering”.

In order to convict for Uttering, the prosecution must show:

The accused directly or indirectly attempted to use a forged writing;
That he or she asserted by using words or actions that the writing was

valid and good or true;

That the individual committing the act did so with the intent to defraud
And that he or she knew the writing was forged.

Note: A forgery and Uttering can be committed at the same time. For instance, when a individual signs a false name on a computer screen to obtain a duplicate writing. The act of forging a writing is the same act which asserts the document is true or that it is good. Both acts happen simultaneously. The signing and the processing occur at the same time.

Note: A judge or jury can infer from facts and circumstances of a case whether there was an intent to Utter.

An inference may be drawn by possessing a forged writing

When a person has a forged writing in his or her possession and attempts to use it to obtain money - an inference may be made that the accused actually forged the item. That is unless

after considering all of the evidence the Judge and/or Jury believes reasonable doubt exists as to the defendant’s guilt.

If there is no evidence to the contrary:

One who creates or signs a writing on behalf of another is presumed to have permission and or authority to do so. (Virginia caselaw).

PUBLIC RECORD FORGERY

Example: Signing an alias on public documents when arrested.

Public Record Forgery is similar to Ordinary criminal Forgery in that there must have been a direct or indirect attempt to use a Forged Writing. There must be an intent to defraud. And there must be a public record involved. So, since in this instance, the writing must be a public record - one may ask - What is a public record? The Commonwealth of Virginia has defined “Public Record” as recorded information that documents a transaction or activity by or with any public officer, agency or employee of an agency. Caselaw.

A Public Record under this Pretext is when:

It is produced;
Collected;
Received;
Or retained in pursuance of law or in connection with the transaction of public business.

Some examples of public records may include: Certificates, Returns, Attestation Clauses, and other public documents.

Note: When dealing with Forgery of Public Records, there does not necessarily need to be the interference of another’s right to be proven guilty of the crime. Ill will to the public is conclusively presumed.

FORGERY EQUIPMENT

Is it against the law to possess forgery equipment?

One may be convicted of the crime of making or having something designed to forge either a writing or another thing. Law Enforcement may look to whether an individual possesses plates, blocks, presses, or other equipment to engrave, stamp, or cast illegal forged objects.

Forgery equipment evidence is often seized when search warrants were issued and the evidence discovered in a search.

Where would one be adjudicated or tried in a Court of Law if charged with Forgery?

In order to prosecute, the Commonwealth of Virginia prosecutor will bring charges against the individual in the correct venue.

The correct venue is in a city, county, or district where the criminal case may be heard.

When determining venue - the court generally looks to where the event occurred. There may be exceptions when determining which is the best venue to adjudicate a case.

Currently, A forgery prosecution may be adjudicated “in a city, county, or district where the writing was forged. It could be where the forged instrument was used or passed to another. It is up to the Commonwealth Prosecution to prove proper venue. They can use direct or circumstantial evidence. There must be a strong presumption the offense was committed within the jurisdiction of the court to demonstrate proper venue.

THE CRIME OF OBTAINING A SIGNATURE - BY FALSE PRETENSE (FORGERY)

If a party by using False Pretenses and possessing the intent to defraud, makes a false representation in order to obtain a signature on a writing - this may constitute the crime of Forgery by False Pretenses.

Courts have differing views determining what element of the alleged crime of Obtaining a Signature by False Pretense (Forgery) should be given more weight and have most significance when determining guilt

Examples of past court rulings:

The Court looks to: “whether the actor committing the alleged crime fraudulently converts that sum of money to his or her own use”.

The Court looks to the key as to whether the pretenses are true or false. If the defendant can show the representation are true - he or she cannot be convicted.

The “but for” test as a general guide may be used to determine whether the false pretenses were the decisive cause that induced the alleged victim to part with his or her property.

False pretense need only have had a decisive influence on the mind of the owner.

It is sufficient that the pretense be part of “moving causes”.

The definition of Forgery by false pretenses may be developed further and more concisely as more case law develops or if the elements of the crime are codified into a Virginia criminal code. But for right now, if you are charged, you need an experienced attorney who is willing to review your fact pattern and the current law. Forgery is an area involving complex legal issues. Hire the right lawyer to help navigate your best defense.

CREDIT CARD FORGERY

There has been a strong influx of gangs and individuals allegedly committing Credit Card Forgery and related crimes in the Commonwealth of Virginia, especially since COVID hit. I constantly hear from detectives that there are groups coming from Maryland, Washington DC, and other states trying to hit our technology selling stores. Computers, televisions, and telephones seem to be the biggest ticket. The losses are high. But when law enforcement makes a bust - the aim is high. The alleged offender is usually bombarded with numerous charges. It is so important to hire quickly. The consequence could be severe.

In order to prosecute, Credit Card Forgery, the Commonwealth of Virginia must essentially show:

That the accused forged some type of form;
And he or she purchased from a merchant something of value such as goods and services with such form(s);
That this was done by use of credit card;
That the perpetrator was not the cardholder nor did he or she have authorization to execute that form in order to make transaction to purchase or obtain services;
And that the accused intended to defraud the issuer.

In many cases involving credit card forgery - the client comes to this Attorney’s office with several charges in addition to the credit card forgery. It is rare to see only one charge against an individual regarding this area of criminal law.

CREDIT CARD FRAUD - INTENT IS FOR USE, TO SELL, OR TO TRANFER

Questions which will be addressed when dealing with Credit Card Fraud Cases:

Did the defendant take, obtain, or withhold a credit card or credit card number from the alleged victim, or take it from the possession, custody, or control of the alleged victim?
Or did the defendant receive the card or its number from another knowing it had been taken, obtained, or withheld from the alleged victim, or taken from his/her possession, custody, or control?
Did the accused receive and retain the credit card or credit card number knowing another had lost or mislaid it?
Is it true that the accused received the credit card or its number because someone mistakenly delivered it and he or she just retained possession?

If it has been decided there was wrongdoing regarding the first few questions -

Law Enforcement and the Commonwealth Attorneys office should look to issues such as

Whether there was an intent to use, sell, transfer the item(s) to a person other than the

issuer or the cardholder. Was consent ever given? Was the purpose to obtain monies,

goods, services, or anything of value? And was there intent to defraud. Lastly, if there is substantial evidence that Credit Card Fraud has occurred - the Commonwealth probably will investigate what other possible of fraud have transpired in the past (6) months and whether the fraud involved more than $1,000.00 dollars. Often if the Commonwealth learns of fraud at a retail store, law enforcement will ask the alleged victims to review videos to gather proof of prior bad acts.

Note: A person may be charged with Credit Card Fraud when using an expired or revoked

Credit Card or Credit Card number.

Note: Credit Card Fraud could be committed by making False Representation.

Note: Cash advances which exceed available credit may constitute Credit Card Fraud.

Note: Making a false statement to obtain property or credit may be a fraudulent crime.

FALSE PRETENSES

What happens when person(s) essentially tricks an alleged victim out of monies or property by using false pretenses?

Well there is law in Virginia which may be utilized to convict the alleged perpetrator of the crime(s). But prior to any conviction(s), law enforcement must gather adequate evidence to present to the Magistrate and/or Commonwealth Attorneys office. Charges must be brought. And the Court process will be initiated.

Once a warrant is issued, law enforcement may make an arrest. They can pick up a party at the individual’s home. The accused may be picked up at his or her place of employment.

Or the alleged perpetrator may picked up when spotted while driving a motor vehicle. Arrests could be made at an abundance of locations. Some law enforcement will attempt to contact the suspect and have him or her come turn themselves in.

There are times - when individuals call Attorney Sheryl Shane’s office and state that they have learned a warrant is pending against them. They want to know how they can learn what specific charges are outstanding without turning themselves in at the police station or jail. They want to know if the charges can be withdrawn if the alleged victim does not want to proceed with criminal charges. These are all good questions. The answers can be given by a seasoned attorney. Attorney Sheryl Shane could be at hand. Give her a call!

Obtaining Money and Goods by False Pretenses

There are just some people who commit fraud and there is nothing to get in their way of committing the crime. There are others who are charged with crimes but are wrongfully charged and are in fact innocent. The fact is “The Commonwealth has to build their case”. They have to come up with a theory branding your client as the perpetrator. The Commonwealth has to show beyond a reasonable doubt at trial that the Defendant is guilty of committing the crime. The prosecution has to tell a story - they will try to convince the Judge and/or Jury that there is no other reasonable alternative hypothesis to explain away the guilt of the accused. It is the job of the defense attorney to protect their clients in these situations. A good attorney needs to prepare and review the evidence - strategize with their client how to move forward. Keep the client updated. Allow the client to be active in his or her defense. The client should be prepared from the beginning for the road ahead.

The client should be provided information all along the way so as to make informed decisions.

Elements the Prosecutor needs to prove Obtaining Goods by False Pretenses:

Intent to defraud;
The actual Fraud must have occurred;
False Pretenses must have been used by the accused to perpetrate the Fraud;
The fraud must be accomplished by means of false pretenses made use of for the purpose; that is, they must be in some degree the cause, if not the controlling and decisive cause, which induced the owner to part with his property.

Examples if situations where people may be charged:

The defendant represents that business is in good shape and that he had completed all necessary financial arrangements with bank to ensure payment of check. The statements were untrue. The check was no good.
There is strong evidence that the defendant knew that a check was forged and materially altered - and still presented the check as good and cashed it.
The Defendant pretends to be an immigration lawyer - accepts money for representation. The defendant is not an attorney.

HIRE A SEASONED ATTORNEY IF YOU BELIEVE YOU ARE GOING TO BE CHARGED WITH CRIMES OF FORGERY - UTTERING - FRAUD AND/OR FALSE PRETENSES

NORTHERN VIRGINIA CRIMINAL DEFENSE ATTORNEY

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Applicable Statutes: