Check writing, Forgery, Uttering and what comes next (criminal law)

Original image at https://www.thebalance.com/how-to-check-a-check-315428

Recently, a question was asked on a law bulletin board regarding criminal culpability. While I answered the question on the Board, I think the question is a good one to share, given the frequency of client requests that are very similar.

I used my deceased father’s old checks when trying to purchase something at the store. The checks all had his name on them already (i.e. signed), but were blank. The cashier refused the check, and I left. I was stopped at the exit to the store and accused of forgery and uttering. If the checks didn’t actually get processed (i.e. no purchase was made), why am I under investigation/charged? I did it on accident

First, it is important to dispel a couple of common fallacies. Number one – it is almost inconceivable that a person would grab the wrong check, and then try to pay for something with it, when clearly, it was already signed by someone else. It is really important when discussing legal issues that (a) you DO NOT discuss anything with anyone other than a lawyer, and (2) you do NOT make up stories that make no sense. Although the story MAY make sense to you, it makes no sense to anyone in the legal field, and will almost certainly lead to charges.

What should you say when stopped by someone who questions you about an issue that could clearly be illegal? You are (a) very polite, (b) firm that you do not wish to discuss the matter without an attorney, (c) unwilling to allow any search or access to anything in your possession unless arrested or ordered by a judge (warrant). Sounds similar to Miranda warnings? They should! Although at first this may sound like you are being difficult, an could lead to further complication and charges – this is NOT the case. It is never wrong to politely decline to provide information other than your name, address where you live, and basic contact information. You only hurt yourself when you go beyond this. Most cases are lost because of what the client says. Remember this!

In your specific instance, you have three charges. Utterance – that is the attempt to circulate a document bearing false seals or signatures; forgery – that is the application of a seal or signature without the consent or knowledge of the owner; attempted fraud (bad check) – you drafted, or caused to be drafted, a check that you knew, or had reason to know, was not legitimate. You submitted that check for goods or service. All three of these are serious charges, and in the case of forgery and utterance, are felonies.

The most common defense to these types of charges is (a) consent or (b) mistake. Mistake is NOT the type mentioned in the question. “It was an accident” is no defense. However, if the mistake is that you understood you had consent, when in fact you did not, and your reliance on that understanding was reasonable, you may be able to mitigate or even stop the charges. Consent would also be clearly a defense – if the check owner indicated the check was drafted with their approval, and they authenticate the signature, then there is no forgery, utterance, or fraud. However, be careful! If you signed someone’s name, and then after the fact they consent, at the time of the drafting, it was still a forgery. A minor technicality, but important when forming the defense.

Do you need help with a criminal matter? Contact us! We have considerable experience in the VA, DC, MD area. We would be glad to meet with you for a free consult. Talk to us BEFORE you speak to the police.

Hanover Law, PC
Offices in Fairfax, VA, Resiterstown, MD, and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

How to address a false US Passport

I had a colleague send me a question recently, and it is worth posting the an analysis of the problem:

Facts: Client is an adoptive child of a US citizen. A travel situation came up where she needed a US passport. We sent her to the passport office and filed an N600.

She was denied for the passport because turns out she did not become an LPR until she was 19. We sent a letter withdrawing her N-600, and started work on an N400. Later, we received another call from the passport agency saying that they would issue her the US passport. The passport was then approved, and we didn't think anything more of it.

Fast forward two months, we just received a denial from USCIS for the N-600. We are at a bit of a loss. Client has already used passport.

If client returns to the US, surrenders the passport to DOS, and files an N400, do you think an argument can successfully be made that she in good faith believed she had acquired US citizenship, or do you think she will be permanently barred?

So here is the basic rule of thumb:

1. If you supplied the correct information to DOS and
2. Dept. of State issued you a passport based on that information and
3. You reasonably relied on that passport to travel, THEN
4. You have not broken any laws if they later withdraw the passport and inform you that you do not have citizenship

The problem arises as to why they gave you the passport in the first place. It is well established law that an LPR child (under 18) must reside with and receive principal support from a USC parent, in the US, to obtain citizenship automatically. See 8 CFR 320.2. Generally, they should have spent at least one year here with their parent in order to prevent RFE’s regarding the degree of support or care (i.e. less than 6 months, the child was receiving primary care from someone else for that year). That’s not a hard-and-fast rule, but a good practice tip.

If she knew she did not meet the criteria above, than she could arguably be held to have violated INA 237(a)(3)(D) -- fraudulent claim of United States Citizenship to derive a benefit under State of Federal law. Here, she would not be an arriving alien, but rather one who was hear legally and just violated the rules. As long as there was no willful or knowing intent, she should be able to avoid a 237 charge.

However...if she re-enters using the passport, then INA 212(a)(6)(C) applies (false claim to USC when entering the US). The key to a fraud/willful misrep is just that – it has to be knowing and intended.

Does she still have her old passport with the I551 stamp? If so, have her come back using that. If her citizenship was revoked on error by the US, then she would resume her LPR status. Use that status to re-enter to avoid a 212 charge.

You also need to get all documentation from the “passport agency” as to how they submitted the documents, and who actually approved the application. Additionally, how was it denied once and then magically re-approved? You need a thorough understanding of that process. This sounds like some kind of Notario hookey-pookey stuff on the part of the passport agency.

Having said that – you are in a rather interesting situation. The Department of State is a separate agency, wholly distinct from USCIS. A denial of the N600 does not automatically deny the passport. However, her knowledge that she does not qualify would make her relying on that passport to pass CBP a fraudulent act – not for DOS (apparently they still believe it is valid), but rather for USCIS. She can’t use that to enter as a citizen.

Do you have a question about immigration law? Give us a call! 703-402-2723 or admin@hanoverlawpc.com

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Notario Fraud - a discussion on what to do (this one is different!)

In the immigration community, you commonly hear about Notario's scamming innocent immigrants in the US. Often, the Notario is a not trained in law at all, and for a large sum of money, files the wrong papers and causes no end of trouble for the immigrant. Of course, this is not always the case. Some Notarios are quite competent and very public in their assistance to the immigrant community. Regardless, there is no such thing as a "notario" in the US. Each and every one of them is unlawfully practicing law (usually really badly).

So, what happens when a notario comes to you with an immigration issue? What happens when the bad-guy comes looking for assistance? We do considerable work in the immigration and criminal defense sectors. I had a chance to discuss this with a good colleague of mine, Mr. Franchesco Martinez, Esq (not a Notario!) from North Carolina. He brought up this case, and I thought a wider audience could benefit from our question and answer parley:

The substance of the questions are as follows:

I have a PC who wants to see if he still has a GC, wants to know if naturalization is possible, and wants to know if he has any deportation orders. I know this sounds broad, but PC has no idea what to do now. PC was in Federal prison - the family member who spoke to me mentioned "Convicted of Notario Fraud" in a very brief sentence. Apparently, the potential client was in jail for four years.

I want to read up on the effects of Notario Fraud. Is general "fraud" all I have to consider? Does anyone have a good, go-to, online source for "notario fraud"? Would a FIOA be beneficial to answer if PC still has a GC or if a deportation occurred while in prison or sometime thereafter?

First, a couple of basic principals. When things look weird, always get a FOIA. There you go.

Secondly, never trust you know everything you need to know about the client's chargeserr…more politically correct: client’s have trouble remembering things).

Thirdly, a green card (LPR) can only be revoked by a judge. However, a federal judge could technically revoke status – so, you need a copy of the sentencing papers from federal court. If there is nothing in the FOIA return about an immigration determination, than guess what? He still is technically an LPR. However…

The mere status as “one who is an LPR” really doesn’t do much without the credentials. An I-90 would be very risky in this instance, as it requires biometrics.

This seems obvious, but…no, he can’t travel. Ever. If he gets picked up on a return trip from overseas, he will be held without bail. Period. Basta. Ende da storio.

So – as for notario fraud, such a thing does not exist to my knowledge. There is no charge for “notario” – that is a term used in a foreign countries to denote an official empowered by the state to conduct certain legal business. In the US, the charge would be unauthorized practice of law, coupled with a possible fraud count. Any description of “notario” would be in the arrest affidavits describing the nature of the offense, not the charge itself. Again, do nothing without court papers in hand, so the advice to get information is spot on.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Bankruptcy -- sample Complaint Filing for 523(a)(2) and 523(a)(6) Adversarial Process

I have been meaning to post the link to this for a bit. We are representing a client who is attempting to avoid the discharge of his claim against the debtor. The following is an example (pdf) of a bankruptcy adversarial filing under 523(a)(2), fraud, and 523(a)(6), willful and malicious injury done by the debtor.




Click here to download the PDF file.

If you have a bankruptcy adversarial case, contact us! We can help develop both a defense and offensive strategy as required.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq. Leigh Wells, Esq.