Gilbert v. United States

RESPONDENT:United States
LOCATION:Herricks School District

DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 370 US 650 (1962)
ARGUED: Apr 10, 1962
DECIDED: Jun 25, 1962

Facts of the case


  • Oral Argument – April 10, 1962 (Part 1)
  • Audio Transcription for Oral Argument – April 10, 1962 (Part 1) in Gilbert v. United States

    Audio Transcription for Oral Argument – April 10, 1962 (Part 2) in Gilbert v. United States

    Earl Warren:

    Mr. Dorn, you may continue.

    Albert A. Dorn:

    If it pleases the Court.

    Before lunch, I indicated to the Court the theory under which the case was tried in the trial court.

    That the theory, the factual — at least supposition was that all of these checks, and by the way, I think we had possibly 8 or 9 or 10 other checks involved in separate forgery counts, that all of the checks were signed in a representative capacity but that the trial court clearly indicated as shown by the record that the trial court considered that nevertheless, if there was no authority either oral or written, that that constituted forgery under the appropriate section of the code.

    In the arguments to the jury, the question was always considered in the light that the checks were signed in a representative capacity.

    John M. Harlan II:

    Are the arguments to the jury — were they transcribed?

    Albert A. Dorn:

    Yes, they were.

    John M. Harlan II:

    Are they into this Court?

    Albert A. Dorn:

    They’re not before this Court.

    Earl Warren:

    Are they available?

    Albert A. Dorn:


    I believe they’re in the record, however, in the transcript.

    Earl Warren:

    The — the complete record is here.

    Albert A. Dorn:

    Yes, it is.

    Earl Warren:

    Are they in there?

    Albert A. Dorn:

    Yes Your, Honor.

    Earl Warren:

    Very well.

    Albert A. Dorn:

    These two checks which were involved now before this Court, were actually considered by both counsel trying the case as the least important of all counts because at the time this case was tried, well, shortly prior to that time, the Government had possession of the power of attorney which is defendants Exhibit M.

    This power of attorney, along with many other powers of attorney together with what the Circuit Court of Appeals in its decision, characterizes as thousands of documents were seized and characterized by the Circuit Court as illegally seized from the defendant based upon the — a complaint issued on one of the checks which is now before this Court so that the Government had the power of attorney in its possession for quite some time.

    There was never any contention that the power of attorney itself was forged or illegally procured or anything else of that nature.

    The power of attorney was simply admitted in evidence at that time and not too much attention was paid to it.

    The question of these two counts, I’m sure, were intermingled with the evidence on 33 other counts involving difficult factual questions, involving complicated tax returns.

    And these two counts, as indicated by the record, the testimony is very brief.

    Some question, I think is made by counsel as to whether the answer of the Bartfield’s was equivocal or not.

    Actually, he says that he did sign the power of attorney.

    He said the signature of his wife looked like her signature.

    She says it appears to be her signature.

    And there’s nothing more ever said about it.

    Insofar as the appearance of the endorsement of the check itself, although in the trial court and Circuit Court of Appeals, it was considered without question that the checks on their face indicated they were signed in a representative capacity.

    Although that was without question, nevertheless, I think the most that can be said about it in this Court is that from the Government’s standpoint, it presented a jury question and I think the jury at least were entitled to decide whether these checks were signed in a representative capacity or not.

    Albert A. Dorn:

    I think as pointed out that it was not on the face of the check and on the back of the check at least to present that question of fact which should have been given to the jury.

    And I submit to this Court that because of the instructions of the court and the refusal of the court to give the defendants free instructions which were refused.

    The jury could not decide that question because it would — could never be presented to the jury on that basis.

    I submit to the Court that I think the common law is clear as to what forgery actually means.

    I think it seems apparent in this case that there was no palming off of the signature of the payee by the defendant.

    As a matter of fact, I think the record will clearly indicate that not only we didn’t concede the signatures.

    We said those signatures all written all of the checks.

    There was never any issue made about it.

    The defendants signed all those names.

    You see on the other checks and those checks all in the record, they are in — they’re in evidence and they are in the exhibit file.

    All of those checks show the same pattern.

    They were signed by the — the payee, defendants signed their names by himself, trustee.

    All of these checks went into the same place.

    They went into the defendants trustee account.

    There is evidence in this record as to what was done with all of these checks.

    As to what happened, I think the question was asked here, as to what happened with the funds in these particular two checks.

    The only evidence which is in the record is that these funds went into this — into this trustee account which was to be — be dispersed in the regular course of his business.

    The evidence does not disclose whether those funds were ever dispersed to the payees or not.

    But nevertheless, there was no claim ever made in the trial court that those funds were handled improperly by the defendant.

    There was never any — there was no evidence that the payees ever made any claim to anybody at anytime that the funds were used improperly or improperly dispersed.

    There was never any claim made that a second claim was made to the Government by the payees for payment on these checks.

    There was no claim ever made that the payees never received any of their — the proceeds of these checks.

    I think if the record is examined as to the defendant’s explanation of how these checks were handled and the funds dispersed, they’re all done in the usual course of his practice in business.

    And there was never any claim that was anything proper about it.

    There was never any claim in the trial court.

    There was never any argument concerning this — these particular counts.

    All that was before the trial court insofar as these two counts are concerned are simply the two checks which were quickly put in evidence, quickly stipulated that the payees did not sign them, that the defendants signed them as it signed all the other checks.

    So that the checks, in our view, never gave nor in — were intended to give the appearance of containing the actual signature of — of the payees.

    I think it’s apparent from the whole case itself that was never the intention.

    And therefore, cannot fall within the classical confines of forgery.

    Albert A. Dorn:

    Counsel had cited various cases but I think I can state to the Court, there isn’t, in my view, one case that I know of which says that a case of this nature is forgery under the statute such as its involved here as counsel has pointed out.

    England had amended its statute to specifically put into their statute the words without authority.

    Now, I think it ought to be pointed out.

    There were two types of endorsements which are possible if a man has authority.

    He may either — if he has authority, he may either — either sign the payees name with nothing more.

    Now, if he has authority, that is not a forged endorsement and that authority can either be oral or written.

    If he has no authority, then that is clearly a forgery that we don’t question about it.

    But where a man signs, endorses a check with the payees name, and some place on that check, it is indicated that he’s not attempting to palm off the signature of the payee as the signature of the payee but indicates that he is signing the representative capacity classically in all the cases we’ve been able to find, it clearly indicates the forgery statute doesn’t encompass that kind of a situation.

    The most that can be said — the most that can be said is that, that person signing that check in that fashion, is indicating to the world that he signed the payees name, not that the payee signed it, but he signed it, but that, he then puts the person unnoticed as to his authority.

    And I think Justice Stewart raised the question as to what the bank’s attitude would be in that kind of a situation.

    The bank’s attitude in that type of a situation when it receives a check which it understands is side in a rep — representative capacity, then it is — they must then satisfy themselves as to the authority of the person signing that check because if they are wrong, if the authority doesn’t exist, then they would be liable to the next endorsement on that check.

    They would’ve guaranteed all the previous endorsements.

    But I submit to the Court classically, and it is not the law that such an endorsement constitutes a forged instrument.

    If any legislature accuses to include within their definition of forgery, a forgery without authority, that, I submit to this Court, would have to be a matter of legislature action and not of judicial interpretation.

    Earl Warren:

    Mr. Dorn, I — I should know from your argument but you said there were about 8 or 10 checks all told, didn’t you?

    Albert A. Dorn:

    Yes, Your Honor.

    Earl Warren:

    And some — and that the others — those other than these two saved by trustee?

    Albert A. Dorn:

    Yes, Your Honor.

    Earl Warren:

    They did.

    These are the only two who didn’t?

    And —

    Albert A. Dorn:


    Earl Warren:

    — they — and all ten of them, if there were ten, were treated alike in the argument that — of the case same under the instructions?

    Albert A. Dorn:

    Yes, Your Honor.

    Earl Warren:

    Very well.