On Appeal from the United States District Court for the Western District of Pennsylvania
BEFORE: ADAMS and BECKER, Circuit Judges and SAROKIN, District Judge*fn*
This appeal presents the question whether the unauthorized act of signing another person's name to a Social Security check, combined with the execution of a fraudulent power of attorney, may be the basis of a conviction for forgery under 18 U.S.C. § 495 (1982).*fn1
Appellant Charles Reagle was convicted on sixteen counts of forging and uttering eight United States treasury checks by endorsing the name of the payee on the checks. In his defense, Reagle argued that because he was acting pursuant to a power of attorney, admittedly fraudulent, his actions did not constitute forgery. On appeal, Reagle maintains that the district court erred in refusing to instruct the jury that Gilbert v. U.S., 370 U.S. 650, 8 L. Ed. 2d 750, 82 S. Ct. 1399 (1962), is the law governing the case, thus in effect preventing the defendant from arguing that his actions, taken together, amounted to an agency endorsement and not a forgery under § 495.*fn2
The facts of the case are not disputed. Following the death of William Wilson in June 1977 in North Carolina, Reagle forged Wilson's name to a power of attorney authorizing Reagle to cash Wilson's Social Security checks. The government checks began to arrive at Wilson's North Carolina address in December 1977, six months after Wilson's death, and were cashed by Reagle. After his discharge from the Army in November 1978, Reagle moved back to Pennsylvania and, pursuant to the forged power of attorney, opened a joint back account in his and Wilson's name at the Mercer County State Bank in Sandy Lake. Although bank officials remembered Wilson as a member of the Sandy Lake community before his move to North Carolina with the Reagles, there is no evidence that they were familiar with his signature. Reagle proceeded to cash at the Mercer County Bank eighteen Social Security checks that were made payable to Wilson. Of these, ten checks (not the subject of the indictment), dated from November 1978 to August 1979, were not endorsed on the reverse side. Beginning in August 1979 Reagle negotiated the eight checks at issue here by signing Wilson's name on the back of each and then depositing them in the joint account.
In April 1981 the Pennsylvania state police questioned Reagle about Wilson's death and the Social Security checks that were made payable to Wilson and cashed by Reagle. Reagle admitted signing Wilson's name on each of the eight checks and then cashing them. He also made a lengthy tape-recorded statement in which he implicated himself in Wilson's death and in the forgery of the power of attorney.
In the course of his statement, Reagle gave the following account: Wilson had been a long-time friend of Reagle's grandfather and had lived with the Reagle family in North Carolina for various periods of time. In June 1977 Reagle, with the help of two friends, dug a deep hole in a sandy area near Fort Bragg, North Carolina. The next day Reagle and one of the friends took Wilson for a ride out to the dunes. Reagle gave Wilson some sleep medication and Wilson fell asleep in the car. Reagle than connected the exhaust pipe to the car interior with pieces of hose and turned the car engine on. Within 20 minutes Wilson was dead. Reagle and his friend then buried Wilson in the hole that had been dug previously.
For reasons not discussed in the record before this Court, Reagle was never prosecuted for his role in Wilson's death. When he was questioned by the Pennsylvania state police about the Social Security checks and the circumstances of Wilson's death, Reagle confessed to the killing, but explained that Wilson, who was quite old and who had recently suffered a stroke, no longer wanted to live and repeatedly asked Reagle to take his life.
In Gilbert, the Supreme Court held that "forgery" under § 495 does not embrace a purported, but misrepresented, agency endorsement . . ." 370 U.S. at 642. There, the petitioner, an accountant, had endorsed two government checks made out to his clients, Daniel and Charlene Bartfield, in the following manner: