GCA Title 9, Chapter 46
9 GCA CRIMES AND CORRECTIONS
CH. 46 FORGERY, FRAUDULENT PRACTICES AND TELEPHONE RECORDS
CHAPTER 46
FORGERY, FRAUDULENT PRACTICES AND TELEPHONE RECORDS
ARTICLE 1 FORGERY AND FRAUDULENT PRACTICES
§ 46.10. Forgery; Defined and Punished.
(a) A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, he: (1) falsely makes a written instrument by drawing a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker, but which is not either because the ostensible maker is fictitious or because, if real, he did not authorize the making or drawing thereof; (2) falsely completes a written instrument by transforming through adding, inserting or changing matter, an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that the complete written instrument falsely appears or purports to be in all respects an authentic creation of its ostensible maker or authorized by him; (3) falsely alters a written instrument by change, without authorization by anyone entitled to grant it, of a written instrument, whether complete or incomplete, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner, so that the instrument so
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altered appears or purports to be in all respects an authentic creation of its ostensible maker or authorized by him; (4) induces another by deception to sign or execute a written instrument which is not what it has been represented to be; or (5) utters any written instrument which he knows to be forged in a manner specified in Paragraphs (1), (2), (3) or (4). (b) Written Instrument includes printing or any other method of recording information, money, coins, tokens, tickets, stamps, seals, credit cards, badges, trademarks and other symbols of value, right, privilege or identification. (c) Forgery is a felony of the second degree if the writing is or purports to be part of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental agency, or part of an issue of stock, bonds or other instruments representing interests or claims against a corporate or other organization or its property. Forgery is a felony of the third degree if the writing is or purports to be a will, deed, contract, release, commercial instrument or other document evidencing, creating, transferring, altering, terminating or otherwise affecting legal relations. Otherwise forgery is a misdemeanor. SOURCE: G.P.C. §§ 115-116, 350, 352, 353, 470-473, 475, 476, 477-483; See also § 474; M.P.C. § 224.1; Cal. §§ 10301040 (1971), see also § 1176; Mass. ch. 266, §§ 26-29; N.J. § 2C:21-1. COMMENT: Former Penal Code §§ 479 and 480 included specific provisions on possession of a forgery with intent to utter and the manufacture or possession of dies or other means of committing forgery. This Code relies on attempt law to cover such crimes. Section 46.10 provides for forgery and counterfeiting in a manner consistent with former law, while eliminating considerable verbiage and overlapping statutes. The Law relating to theft, fraud, attempt and complicity tend to diminish the need for a separate forgery offense. However, the offense is retained as it was in the Model Code ‘because the concept is so embedded in statutes and popular understandings that it could be inconvenient as unlikely that any legislation would completely abandon it, and partly in recognition of the special effectiveness of forgery as the means of undermining public confidence in important symbols of commerce, and perpetrating large scale frauds.’ M.P.C. §§ 79-80 (tent. draft No. 11, 1960). NOTE: The comma which formerly appeared between the words ‘commercial’ and ‘instrument’ in § 46.10 (c) has been removed, as this was a typographical error. [Memo of Charles H. Troutman, Compiler of Laws, June 29, 1987.]
§ 46.15. Criminal Simulation; Defined and Punished.
A person commits a misdemeanor if, with intent to defraud anyone or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he makes, alters or utters any object so that it appears to have value because of antiquity, rarity, source or authorship which it does not possess. SOURCE: *M.P.C. § 224.2; Mass. ch. 266, § 33; N.J. § 2C:21-2. CROSS-REFERENCES: § 46.40 deceptive business practices; § 43.35 -attempted theft by deception; § 13.10 - attempt. COMMENT: This Section is substantively the same as Model Penal Code § 224.2. It is related to § 46.40, but covers person not acting ‘in the course of business.’ It overlaps to some extent § 43.35 insofar as the punishes conduct which could be punished as an attempted theft by deception. Nevertheless, it is believed to be useful for its greater specificity.
§ 46.20. Tampering with Recordable Documents; Defined and Punished.
A person commits a felony of the third degree if, with intent to deceive or injure anyone, he destroys, removes or conceals any will, deed, mortgage, security instrument or other writing for which the law provides public recording. SOURCE: G.P.C. § 617; *M.P.C. § 224.3; See Cal. § 1146, 1170 (1971); Mass. ch. 266, § 38; N.J. § 2C:21-3. CROSS-REFERENCES: § 46.26 - Lessor included offense; § 43.35 -Theft by deception.
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COMMENT: Section 46.25 completely overlaps § 46.20 and thus provides a lesser included offense to the one provided by the latter Section. The purpose of including both Sections is that § 46.20 provides a more severe penalty which may be appropriate where instruments of great importance, such as wills and deeds, are destroyed, removed or concealed. It might be noted that, although § 46.25 provides only for misdemeanor penalties, the conduct envisaged here may also constitute an attempt of a more serious offense and may be punished accordingly.
§ 46.25. Tampering with Records to Deceive or Conceal; Defined and Punished.
A person commits a misdemeanor if, knowing that he has no privilege to do so, he falsifies, destroys, removes or conceals any writing or record, with intent to deceive or injure anyone or to conceal any wrongdoing. SOURCE: G.P.C. §§ 115a, 471, 563, 563a, 554, 617, 620; See also §§ 113, 114, 115; *M.P.C. § 224.4 See Cal. Section 11, 1174 (1971); Mass. ch. 266, § 31; N.J. § 2C:21-4. CROSS-REFERENCES: See Comment to § 46.20.
§ 46.30. Issuance of Dishonored Checks.
(a) Definitions. For the purpose of this section, the following terms have the meanings given them. (1) Check means a check, draft, order of withdrawal, or similar negotiable or nonnegotiable instrument. (2) Credit means an arrangement or understanding with the drawee for the payment of a check. (b) Acts constituting. Whoever issues a check which, at the time of issuance, the issuer intends shall not be paid, is guilty of issuing a dishonored check and may be sentenced as provided in subsection (b)(1). In addition, restitution may be ordered by the court. (1) Penalties. A person who is convicted of issuing a dishonored check under subsection (b) is: (A) guilty of a petty misdemeanor punishable by imprisonment for not more than sixty (60) days or by payment of a fine of not more than 250; or (B) guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, or by payment of a fine of not more than 250, but not more than 5,000, or both, if the value of the dishonored check, or checks aggregated under paragraph (2), is more than $1,000. (2) In a prosecution under this paragraph, the value of dishonored checks issued by the defendant in violation of this subsection within any six-month period may be aggregated and the defendant charged accordingly in applying this section. (c) Proof of intent. Any of the following is evidence sufficient to sustain a finding that the person at the time the person issued the check intended it should not be paid: (1) proof that, at the time of issuance, the issuer did not have an account with the drawee; (2) proof that, at the time of issuance, the issuer did not have sufficient funds or credit with the drawee and that the issuer failed to pay the check within thirty (30) days after mailing of notice of nonpayment or dishonor as provided in this subsection; or
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(3) proof that, when presentment was made within a reasonable time, the issuer did not have sufficient funds or credit with the drawee and that the issuer failed to pay the check within thirty (30) days after mailing of notice of nonpayment or dishonor as provided in this subsection. Notice of nonpayment or dishonor that includes a citation to this section shall be sent by the payee or holder of the check to the maker or drawer by certified mail, return receipt requested, or by regular mail, supported by an affidavit of service by mailing, to the address printed on the check. Refusal by the maker or drawer of the check to accept certified mail notice or failure to claim certified or regular mail notice is not a defense that notice was not received. The notice may state that unless the check is paid in full within thirty (30) days after mailing of the notice of nonpayment or dishonor, the payee or holder of the check will or may refer the matter to proper authorities for prosecution under this section. An affidavit of service by mailing shall be retained by the payee or holder of the check. (d) Proof of lack of funds or credit. If the check has been protested, the notice of protest is admissible as proof of presentation, nonpayment, and protest, and is evidence sufficient to sustain a finding that there was a lack of funds or credit with the drawee. (e) Exceptions. This section does not apply to a postdated check or to a check given for a past consideration, except a payroll check or a check issued to a fund for employee benefits. SOURCE: G.P.C. § 476(a); *M.P.C. § 224.5; Cal. § 1042 (1971); Mass. ch. 266, § 23; N.J. § 2C:21-5. Repealed and reenacted by P.L. 23-084:2 (Mar. 12, 1996). CROSS-REFERENCES: § 43.15 - Theft § 43.20 -Classification of Theft. COMMENT: Section 476(a) of the Penal Code is superseded by this Section. Section 46.30 eliminates the requirement under the Penal Code that check be drawn ‘with intent to defraud.’ This requirement has been used by some of the courts of Guam to essentially eliminate the crime of issuing bad checks as, in most cases, a specific intent to defraud is very difficult to prove. This Section should remedy that problem. On the other hand, the offense here has been classified as a petty misdemeanor. Further, defenses are presented in this Section which will make this Section more difficult to be used by merchants as a means of collecting money. Note, however, that where a back check is issued as part of an attempted or committed theft, the defendant may be prosecuted for the more serious offense. 2014 NOTE: Subsection designations in subsection (b) were altered to adhere to the Compiler’s alpha-numeric scheme pursuant to the authority granted by 1 GCA § 1606.
§ 46.35. Fraudulent Use of Credit Cards; Defined and Punished.
(a) A person commits an offense if he uses a credit card with the intent of obtaining property or services with knowledge that:
- the card is stolen or forged;
- the card has been revoked or cancelled; or
- for any other reason his use of the card is unauthorized. (b) It is an affirmative defense to prosecution under Paragraph (3) of Subsection (a) if the defendant proves by a preponderance of the evidence that he had the ability and intended to meet all obligations to the issuer arising out of his use of the card. (c) Credit card means a writing purporting to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer.
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(d) An offense under this Section is a felony of the third degree if the value of the property or services secured or sought to be secured by means of the credit card exceeds $500; otherwise it is a misdemeanor. SOURCE: *M.P.C. § 224.6; cf Cal. § 1040 (1971); Mass. ch. 266, § 24; N.J. § 2C:21-6. CROSS-REFERENCES: See Sections 43.35 and 43.55 - Theft by deception. People v. Von Hecht , 133 Cal. App. 2d, 25, 383, Pac. 2nd 764 (1955). COMMENT: This is a new Section having no parallel in former law. This Section recognizes a new element (relatively speaking, in comparison with the age of the Guam Penal Code) in Commerce, that of the credit card. Chapter 43 of this Code does not reach the issue of use of another’s credit card. The merchant who is deceived by the defendant using someone else’s credit card does not lose thereby. He is paid by the credit company. The owner who is deceived by the defendant using the credit card is usually limited to a loss of fifty dollars. It is the credit card company, a third party to the transaction, who suffers the loss. Thus, the need for this Section.
§ 46.40. Deceptive Business Practices; Defined and Punished.
(a) A person commits a misdemeanor if in this course of business he: (1) uses or possesses for a false weight or measure, or any other device for falsely determining or recording any quality or quantity; (2) sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service; (3) takes or attempts to take more than the represented quantity of any commodity or service when as buyer he furnishes the weight or measure; (4) sells, offers or exposes for sale adulterated or mislabeled commodities. ‘Adulterated’ means varying from the standard of composition or quality prescribed by or pursuant to any statute providing criminal penalties for such variance or lawfully promulgated administrative regulation, or, if none, as set by established commercial usage. ‘Mislabeled’ means varying from the standard of truth or disclosure in labeling prescribed by or pursuant to any statute providing criminal penalties for such varian