APPEALS FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Christina P. Argyres, District Judge.
H. Balderas, Attorney General Anita Carlson, Assistant
Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender J.K. Theodosia
Johnson, Assistant Appellate Defender Santa Fe, NM for
Appellant Karl Candelaria.
Jonathan Tsosie Denver, CO Ben A. Ortega Albuquerque, NM for
Appellant Nora Chee.
J. KIEHNE, JUDGE PRO TEMPORE.
Defendants Nora Chee and Karl Candelaria each appeal from
separate judgments and sentences following a jury verdict
finding them both guilty of fraud, forgery, and conspiracy to
commit fraud, and Defendant Chee guilty of embezzlement,
arising from a scheme in which they stole over $200, 000 from
the franchisor of Defendant Chee's business by writing
unauthorized checks to themselves. Because the two cases
arise from the same facts, and Defendants raise similar
claims, we consolidate these cases for decision. See
Rule 12-317(B) NMRA.
Defendants make the following claims on appeal: (1) that the
evidence was insufficient to support their convictions for
forgery, because the checks and signature stamp that they
used to carry out their scheme were authentic, even though
their use of those items was unauthorized; (2) that the
district court erred in denying their motions to dismiss the
charges against them on speedy trial grounds on the stated
basis that the motions were filed after the deadline for
filing pretrial motions in the district court's
scheduling order; (3) that the district court erred when it
allowed late-disclosed evidence to be used at trial and did
not grant a continuance to allow Defendants to further
investigate it; (4) that the district court erred when it
allowed a substitute witness to testify as a records
custodian; and (5) that the district court erred in allowing
a variety of unfairly prejudicial evidence to be admitted at
trial. Defendant Candelaria also challenges his two
convictions for fraud, arguing that they violate his right to
be free from double jeopardy. We agree that Defendant
Candelaria's two fraud convictions violate the
prohibition on double jeopardy, and remand to the district
court with instructions that one of the convictions be
vacated. We affirm the district court's judgments and
sentences in all other respects.
Defendant Chee owned a business called Care Connections,
which was a franchise of Around the Clock Healthcare Services
(ATC), a medical staffing company based in New York. Care
Connections, as a franchisee of ATC, provided Registered
Nurses (RNs), Licensed Practical Nurses (LPNs), and various
other healthcare workers to healthcare facilities in need of
temporary staff. Ms. Chee was also an RN. Chee's
boyfriend, Defendant Candelaria, was an employee of Care
Connections, where he performed administrative tasks. He was
not an RN, nor was he an employee of ATC.
offered a program called the "daily pay program" or
"quick pay program," which allowed RNs to submit a
timesheet verifying the work that they had done for a
healthcare facility, and be paid by ATC that same day rather
than having to wait until the end of the next pay period. ATC
provided its franchisees, including Defendant Chee's
franchise, with check stock and the signature stamp of
ATC's Chief Financial Officer, David Kimbell, to
facilitate the quick pay program. ATC placed firm
restrictions on Defendant Chee's ability to use the
signature stamp and check stock: she was authorized to issue
checks only to RNs, for amounts of $500 or less, with a limit
of one check per person per day. As a principal of the
franchise, Defendant Chee was not authorized to issue quick
pay checks to herself, even for services she rendered as an
RN. Defendant Candelaria was not entitled to receive quick
pay checks, because he was not an RN, and thus could not have
provided any services that would have entitled him to receive
a quick pay check.
Mr. Kimbell and David Savitsky, the Chief Executive Officer
of ATC, discovered in 2009 that Care Connections had issued a
number of quick pay checks to Defendants Chee and Candelaria
in 2008 and 2009, in amounts totaling over $200, 000. No
documentation established that Defendants performed any work
to justify the issuance of those checks. The checks were
deposited into two different bank accounts that Defendant
Chee had opened, and the money was often quickly withdrawn.
Defendant Chee was the only person authorized to make
withdrawals from those accounts. During the relevant time
period, Defendant Chee also wrote checks for large amounts of
money from those accounts to Defendant Candelaria.
Both Defendants were arrested on June 3, 2011, and charged
with multiple counts of forgery ($2500 or less), contrary to
NMSA 1978, Section 30-16-10(A), (B) (2006); conspiracy to
commit forgery, contrary to Section 30-16-10(A), (B) and NMSA
1978, Section 30-28-2 (1979); and fraud (between $2, 500 and
$20, 000), contrary to NMSA 1978, Section 30-16-6 (2006);
plus one count of conspiracy to commit fraud (between $2, 500
and $20, 000), contrary to Section 30-16-6 and Section
30-28-2. The State also charged Defendant Chee with multiple
counts of embezzlement, contrary to NMSA 1978, Section
30-16-8 (2007), and Defendant Candelaria with one count of
fraud (over $20, 000), contrary to Section 30-16-6. The
district court consolidated Defendants' cases for trial,
and Defendant Chee was convicted of twenty-two counts of
forgery, one count of embezzlement, one count of fraud, and
one count of conspiracy to commit fraud. Defendant Candelaria
was convicted often counts of forgery, two counts of fraud,
and one count of conspiracy to commit fraud.
Substantial Evidence Supported Defendants' Forgery
Defendants claim that substantial evidence did not support
their forgery convictions. Specifically, Defendants contend
that their conduct did not constitute the crime of forgery
because the quick pay checks and signature stamp used in the
scheme were genuine, and Defendant Chee endorsed the checks
with her own genuine signature. We disagree.
"Although framed as a challenge to the sufficiency of
the evidence, Defendants'] argument requires us to engage
in statutory interpretation to determine whether the facts of
this case, when viewed in the light most favorable to the
verdict, are legally sufficient to sustain" their
convictions for forgery, and we therefore apply I de novo
review. See State v. Barragan, 2001-NMCA-086, ¶
24, 131 N.M. 281, 34 P.3d 1157, overruled on other
grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37
"Forgery consists of falsely ... making or altering any
signature to, or any part of, any writing purporting to have
any legal efficacy with intent to injure or defraud; or
knowingly issuing or transferring a forged writing with
intent to injure or defraud[.]" Section 30-16-10(A)(1).
"Forgery has been defined as a crime aimed primarily at
safeguarding confidence in the genuineness of documents
relied upon in commercial and business activity."
State v. Baca, 1997-NMSC-018, ¶ 5, 123 N.M.
124, 934 P.2d 1053. Forgery "requires a lie," but
"it must be a lie about the document itself: the lie
must relate to the genuineness of the document."
Id. Indeed, as Defendants correctly observe, New
Mexico case law interpreting our forgery statute has long
recognized a distinction between a document "which is
not genuine" (which can form the basis of a forgery
conviction), and a genuine document "the contents or
allegations of which are false" (which cannot).
Territory v. Gutierrez, 1906-NMSC-003, ¶ 5, 13
N.M. 312, 84 P. 525. The Supreme Court of the United States
has also recognized the same historic distinction in the law
of forgery. See Gilbert v. United States, 370 U.S.
650, 658 (1962) ("Where the 'falsity lies in the
representation of facts, not in the genuineness of
execution,' it is not forgery."); see
also Moskal v. United States, 498 U.S. 103, 119
(1990) (Scalia, J., dissenting) ("A forged memorandum is
'falsely made'; a memorandum that contains erroneous
information is simply 'false.' ").
Attempting to seize upon that distinction, Defendants argue
that the checks at issue in this case merely "told
lies" by, in effect, falsely representing that
Defendants were entitled to deposit the checks, but
"were not lies in and of themselves" because both
the checks and the signature stamp were genuine. In response,
the State, while not disputing that the checks and the
signature stamp were genuine, argues instead that
Defendants' use of them beyond ATC's authorization to
do so constitutes forgery.
We conclude that the jury could properly find that Defendants
committed forgery. Although the checks themselves and the
signature stamp were genuine, our appellate courts have long
held that a defendant may commit forgery by signing another
person's name without authority and, conversely, that
signing another's name with authorization is not forgery.
See State v. Smith, 1927-NMSC-012, ¶ 7, 32 N.M.
191, 252 P. 1003 (holding that an indictment's allegation
that the defendant committed forgery by "falsely"
signing another's name sufficiently alleged that the
defendant signed the name without authority to do so);
State v. Lopez, 1969-NMCA-115, ¶¶ 13-16,
81 N.M. 107, 464 P.2d 23 (concluding that the defendant was
properly convicted of forgery for attempting to cash a check
made out to another person and endorsing that person's
name without authorization), overruled on other grounds
by State v. Ruffins, 1990-NMSC-035, ¶ 17, 109 N.M.
668, 789 P.2d 616; State v. Saavedra, 1979-NMCA-096,
¶¶ 10-12, 93 N.M. 242, 599 P.2d 395 (holding that
the defendant was properly convicted of forgery for signing
account holder's name to stolen checks); cf. Clark v.
State, 1991-NMSC-079, ¶ 12, 112 N.M. 485, 816 P.2d
1107 ("It is clear, we think, that 'wherever
authority is given to sign the name of another to a writing,
there can be no forgery.'" (quoting 36 Am. Jur. 2d
Forgery § 9 (1968))).
In sum, whether a defendant signs another's name by hand,
or uses a signature stamp, his or her actions tell a lie
about the document itself-that it has been made with the
approval of the apparent signer, and is therefore genuine-and
does not merely tell a lie about a fact or facts stated in
the document. We therefore conclude that Defendants' use
of a signature stamp and the checks outside the scope of
their authorization to do so were acts which, when combined
with the required intent to injure or defraud, constituted
Defendants rely on several cases in support of their contrary
position, but all of them are distinguishable. See State
v. Carbajal, 2002-NMSC-019, 132 N.M. 326, 48 P.3d 64;
Gutierrez, 1906-NMSC-003; andState v.
Leong, 2017-NMCA-070, 404 P.3d 9, cert, denied,
2017-NMCERT-__(No. S-l-SC-36576, Aug. 18, 2017). Each of the
cited cases held only that a defendant's act of signing
his own name does not support a forgery conviction.
See Carbajal, 2002-NMSC-019, ¶¶ 18-19
(stating that the defendant did not commit forgery by signing
his own name to another person's traveler's check);
Gutierrez, 1906-NMSC-003, ¶¶ 1, 4, 9
(holding that a notary public could not be guilty of forgery
for signing his own name to a certificate of acknowledgement
that contained false statements); Leong,
2017-NMCA-070, ¶ 16 (reversing the defendant's
conviction for forgery based upon the act of signing his own
name to an affidavit of residency that contained a false
Defendant Candelaria's reliance on United States v.
Hunt, 456 F.3d 1255 (10th Cir. 2006), is similarly
misplaced. In that case, the defendant had check-writing
authority for his employer, but exceeded that authority by
personally signing checks totaling over $2 million to false
payees that he controlled, and then using the money for his
own purposes. Id. at 1256-57. The Tenth Circuit held
that this misconduct did not constitute forgery because the
defendant "signed each of the 65 checks using his own
true name," and thus the checks "were genuinely
executed, not 'falsely made,' because they do not
purport to be anything other than checks written by an...
agent [of the defendant's employer]." Id.
at 1263. In explaining its decision, the Tenth Circuit said
that "common-law forgery cases consistently use the word
'genuine' to refer to genuineness of execution or
authorship, not authority to act as an agent for another[,
]" id. at 1267, and Defendant Candelaria
concludes from this statement that his (and Defendant
Chee's) lack of authority to sign the checks with Mr.
Kimbell's signature stamp did not constitute forgery. But
Hunt is unavailing because the defendant in that
case signed his own name, and thus his execution of the
checks was genuine in the sense that he was the true signer,
albeit one acting beyond the authority that his employer gave
to him. Here, by contrast, Defendants used another
person's signature stamp to sign the checks without
authority to do so, conduct which constitutes forgery under
New Mexico law. The Tenth Circuit itself has recognized that
an agent commits forgery if he or she signs the
principal's name without authority to do so. See
Selvidge v. United States, 290 F.2d 894, 895 (10th Cir.
1961) (holding that the defendant, who, without authority,
endorsed her employer's checks "as the agent of her
named principal" did not commit forgery, but observing
that if she had signed the name of her principal without
authority to do so, "the crime of forgery would have
Defendant Candelaria also relies on language in Hunt
indicating that because banks are generally liable if they
pay on a forged check, and are rarely aware of private
limitations on an agent's authority, "[h]olding
banks liable in cases of forgery would make no sense ... if
any check signed by an agent without actual authority
qualified as 'forged.'" 456 F.3d at 1262. Again,
Defendant Candelaria's reliance on Hunt is
unavailing. First, we reject any argument that Defendants
should escape punishment for their wrongful conduct merely
because a third party may ultimately be responsible for
satisfying the victim's financial loss resulting from
that wrongful conduct. Moreover, the quoted language appears
in the portion of the Hunt opinion in which the
Tenth Circuit was discussing the early development of the
common-law crime of forgery, and is difficult to reconcile
with the present-day reality that banks are not automatically
liable for paying out on forged checks. Under New
Mexico's version of the Uniform Commercial Code, a
bank's customers have a duty to examine their statements
and promptly notify the bank of any unauthorized payments.
See NMSA 1978, § 55-4-406(c) (1992). A
customer's failure to do so constitutes a defense to a
claim that the bank improperly paid on a forged check.
See § 55-4-406(d), (e) (stating that a customer
who does not exercise reasonable promptness in examining
statements for unauthorized payments may be precluded from
recovering from the bank).
contrary to Defendant Chee's assertion, State v.
Deutsch, 1985-NMCA-123, 103 N.M. 752, 713 P.2d 1008,
does not advance her cause. Chee relies on
Deutsch's statement that where an agent with a
"general power" to act for his principal endorses
his principal's name, that is not forgery because the
endorsement is fully effective, see id. ¶ 53,
and argues that she did not commit forgery because she had
authority to act for ATC. Careful analysis reveals that the
language in Deutsch that Chee now relies on was
non-binding dicta. The defendant in Deutsch was not
an agent who had a general power to sign for his principal,
but endorsed and cashed checks belonging to a company that he
once fully controlled but had since been placed in
trusteeship. Id. ¶¶ 2-8. He was convicted
on multiple counts of forgery, and this Court reversed the
forgery convictions that were based on checks on which the
defendant had signed his own name, but upheld the forgery
convictions relating to checks on which the defendant falsely
signed the trustee's name. Id. ¶¶ 48,
54-56. Quite simply, Deutsch did not hold that a
defendant's act of signing another person's name
without authorization cannot support a forgery conviction.
The District Court Did Not Err in Denying Defendants'
Speedy Trial Motions as Untimely Filed
Defendants claim that the district court erred by summarily
denying their speedy trial motions on the ground that they
were filed after the deadline for pretrial motions set forth