State v. Leong
33,847
| N.M. Ct. App. | Jun 28, 2017Background
- Defendant Gordon Leong signed an MVD "Affidavit of New Mexico Residency" vouching that Tian F. Guo lived at Defendant’s apartment and provided a photocopy of his own driver’s license; the affidavit was used by MVD to issue a license to Guo.
- Defendant was charged among many counts and tried on 74 counts; the jury convicted him of four counts arising from the January 21, 2010 affidavit: forgery (make or alter), forgery (issue or transfer), conspiracy to commit forgery (issue or transfer), and making a false affidavit (perjury).
- At sentencing the district court merged the forgery (make or alter) and perjury convictions; on appeal Defendant challenged admission/authentication of the affidavit, whether false content in a genuine affidavit constitutes forgery, the forgery jury instruction language, and admission of co-conspirator testimony.
- The State authenticated the affidavit through testimony of an experienced MVD manager (Mark Lucero) who described MVD procedures for verifying an affiant’s identification and keeping affidavit records; the district court admitted the affidavit.
- The appellate court held the affidavit was properly authenticated, reversed the two forgery convictions and the conspiracy conviction (conspiracy to commit forgery), affirmed the perjury conviction, and remanded for resentencing on the remaining perjury count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/authentication of the affidavit | State: MVD records and Lucero’s testimony sufficiently authenticate the affidavit | Leong: needed additional authentication (signature/handwriting experts); Lucero lacked knowledge of all MVD offices | Affirmed — Lucero’s testimony and record evidence sufficiently authenticated the affidavit under Rule 11-901 |
| Whether false content in a genuine affidavit is forgery (make or alter) | State: submitting the affidavit with false statements supports forgery convictions | Leong: false statements in a genuine affidavit amount to perjury, not forgery | Reversed — falsity of contents in a genuine document does not constitute forgery; insufficient evidence for forgery (make or alter) |
| Whether false content supports forgery (issue or transfer) | State: issuing/transferring the affidavit with false content is forgery (issue/transfer) | Leong: same as above — only perjury | Reversed — issuing/transferring a genuine document that contains false statements is not a forged writing for § 30-16-10(A)(2) |
| Conspiracy to commit forgery based on affidavit | State: Leong conspired with others (including Guo) to obtain a license using the affidavit | Leong: no conspiracy to commit a forgery because the underlying act was perjury, not forgery; contested co-conspirator testimony | Reversed — because no underlying forgery as a matter of law, conspiracy to commit forgery cannot stand |
Key Cases Cited
- Marteney v. United States, 216 F.2d 760 (10th Cir. 1954) ("falsely" in forgery statute refers to genuineness of the writing, not truth of contents)
- Gilbert v. United States, 370 U.S. 650 (1962) (where falsity is in rendition of facts, it is not forgery)
- United States v. Barber, 39 F.3d 285 (10th Cir. 1994) (forgery where spurious documents created to impersonate or misrepresent the document itself)
- Lucero-Carrera v. Holder, [citation="349 F. App'x 260"] (10th Cir. 2009) (distinguishing genuine documents with false statements from spurious documents as forgery)
- Reese v. State, 378 A.2d 4 (Md. Ct. Spec. App.) (false contents in a genuine instrument do not make it a false instrument)
- Glasener v. United States, 81 F. 566 (S.D. Cal. 1897) (false making of an affidavit concerns the paper’s genuineness, not merely falsity of statements)