dissenting.
This case is one of the strangest I have ever seen. So far as I can determine, the defendant, Charles Reagle, has confessed to a premeditated murder. For some reason, he has not been prosecuted. He has also, so far as I can see, forged a power of attorney in violation of 18 U.S.C. § 495 (1982). He has not been prosecuted for that crime either. Inexplicably, he has been prosecuted for the one crime which, under the applicable caselaw, he did not commit: forgery of a check.
The majority rests its judgment upholding the conviction on its distinction of the rule of Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962). It holds that Gilbert does not apply where the false representation of an agency relationship between the endorser and payee of a check appears “merely” on a power of attorney filed with a depositary bank. Rather, the majority holds, the Supreme Court’s decision in Gilbert is limited to cases in which the false representation of agency appears “on the face” of the instrument. While I acknowledge that this difference exists between Gilbert and this case, and while I acknowledge that other courts, perhaps also dissatisfied with the seemingly hyper-technical construction of forgery given in Justice Harlan’s opinion in Gilbert, have held similarly, I do not believe this difference amounts to a legally cognizable distinction. Accordingly, I respectfully (and regretfully) dissent.1
As the majority notes, Gilbert holds that a false representation of an agency relationship does not amount to forgery. As I read Justice Harlan’s painstakingly researched opinion, it holds that forgery is a form of false impersonation, a false representation of identity accomplished by mimicry of an identifying mark (the signature) of the person impersonated, and that there is no forgery where there is no false impersonation. For example, where the (false) agency is disclosed on the check itself by reason of the form of the endorsement, there is no false representation of identity, only a false representation of agency, and therefore there is no forgery.
In this case, the record unequivocally establishes that the reason the depositary bank (Mercer County Bank) honored the checks was not that it thought Reagle’s signature was that of Wilson, but rather that it thought Reagle was Wilson’s duly authorized agent. The record clearly shows that the officers of the bank, situated in a small community where Reagle and Wilson were known, knew that Reagle was not Wilson. Indeed the evidence is that the bank officers knew that the Reagle and Wilson families were close and that the Reagles had done a lot of banking for Wilson over the years. It seems clear from the record that the depositary bank honored the checks paid to Wilson because of a written power of attorney that purported to establish an agency relationship between Wilson and Reagle. It was Reagle’s forgery of this power of attorney — and not his affixation of Wilson’s signature to the social security checks — that led to the bank’s being deceived. While Reagle could quite likely have been indicted and prosecuted for this forgery of the power of attorney, see 18 U.S.C. § 495, the fact is that he was not.
The majority suggests, see Majority Op. at n. 5, that while the depositary bank may not have been a victim of forgery — because it knew that Reagle was not Wilson — subsequent collecting banks, who were without benefit of the also-forged power of attorney, may have endorsed the checks and given their warranties of presentment and transfer, see U.C.C. § 3-417, on the mistaken belief that Wilson’s signature was genuine. Such a possibility would not be present where (as in Gilbert) the false *271representation of agency was on the face of the instrument; the collecting banks would know as much as the depositary bank in such eases. While this theory could justify the distinction the majority makes today, I believe it relies on an unrealistic assumption. In making their presentment and transfer warranties, collecting banks do not rely on their ability to sue the individual endorser. Rather, they almost always rely on the warranties made by the depositary banks and previous collecting banks. In short, the collecting banks have no interest in whether Wilson’s signature was genuine.2
Thus, because the majority’s holding cannot be squared with Gilbert, I dissent.
. I do agree with the majority's holding that there is no merit to Reagle’s other contentions, namely, that the district court erred in admitting character evidence and abused its discretion in imposing a ten-year sentence.
. I recognize that two sister circuits have held that Gilbert does not apply where an oral misrepresentation as to agency is made. Those cases do not fully support the holding here. If Gilbert were read to apply to oral misrepresentations, every defendant would have an incentive to invent recollections of such oral representations. To my mind, therefore, the Hill and Wilkins cases cited by the majority amount to a "statute of frauds" or "parole evidence rule” gloss on the Gilbert case. Here, however, there is a writing — albeit an apparently forged one. There is no reason to worry that Reagle invented the power of attorney after he was charged with forgery.