NOTE 1: Using this specification. This is a different offense from Instruction 3a-47a-1, Making Worthless Checks with Intent to Defraud. Because the specification alleges the conduct was for the payment of a past due obligation or any other purpose, it should allege an intent to deceive. See US v. Wade, 34 CMR 287 (CMA 1964); US v. Hardsaw, 49 MJ 256 (CAAF 1998) (finding the intent to deceive is included in the intent to defraud and affirming a specification alleging an intent to defraud for the purpose of paying a past due obligation).
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: BCD, TF, 6 months, and E-1 (if “mega-spec” alleged, see US v. Mincey, 42 MJ 376 (CAAF 1995)). (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, with intent to deceive and for the payment of a past due obligation, to wit: __________ (for the purpose of __________) wrongfully and unlawfully (make) (draw) (utter) (deliver) to __________, a certain (check) (draft) (money order) for the payment of money upon (__________ Bank) (__________ depository), in words and figures as follows, to wit: __________, then knowing that (he) (she) (__________), the (maker) (drawer) thereof, did not or would not have sufficient funds in or credit with such (bank) (depository) for the payment of the said (check) (draft) (order) in full upon its presentment.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (made) (drew) (uttered) (delivered) to (state the name of the payee or other alleged victim) a (check) (draft) (money order) drawn upon the (__________ Bank) (__________), to wit: (describe the check, draft, money order, or, if set forth in the specification, make reference to it);
(2) That the accused did so for the purpose (or purported purpose) of (effecting the payment of a past due obligation) (__________);
(3) That the accused committed the act with intent to deceive; and
(4) That, at the time of the (making) (drawing) (uttering) (delivering) of the instrument, the accused knew that (he) (she) (the maker/drawer) did not or would not have sufficient (funds in) (credit with) the (bank) (depository) for the payment thereof in full upon its presentment.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
((“Making”) (“Drawing”) refers to the act of writing and signing the instrument.)
(“Uttering” means transferring, or offering to transfer, the instrument to another.)
(“Delivering” means transferring the instrument to another.)
(“For the payment of any past due obligation” means for the purpose of satisfying in whole or in part any past due obligation. A “past due obligation” is an obligation to pay money, which obligation has legally matured before (making) (drawing) (uttering) (delivering) the instrument.)
“Intent to deceive” means an intent to mislead, cheat, or trick another by means of a misrepresentation made for the purpose of gaining an advantage for oneself or for a third person, or of bringing about a disadvantage to the interests of the person to whom the representation was made or to interests represented by that person.
(“Sufficient funds” means an account balance of the maker or drawer in a (bank) (depository) when the (check) (draft) (money order) is presented for payment which is at least equal to the amount of the (check) (draft) (money order) and which has not been rendered unavailable for payment by garnishment, attachment, or other legal procedures.)
(“Credit” means an arrangement or understanding, express or implied, with the (bank) (depository) for the payment of a check, draft, or money order.)
(“Upon its presentment” refers to the time the demand for payment is made upon presentation of the instrument to the (bank) (depository) on which it was drawn.)
((“Bank”) (“Depository”) means any business regularly but not necessarily exclusively engaged in public banking activities.”)
NOTE 3: Inference of guilty intent or knowledge. The statutory text of Article 123a creates a prima facie presumption of knowledge and intent by proof of notice and nonpayment within 5 days. The following instruction on an inference of guilty intent and knowledge may be given when the military judge determines that there is some evidence to support each factor listed below:
You may infer that the accused intended to deceive and had knowledge of the insufficiency of the (funds in) (credit with) the (bank) (depository), if you determine that:
(1) The accused was the (maker) (drawer) of a (check) (draft) (money order) described in the specification; and
(2) The accused (made) (drew) (uttered) (delivered) to (state the name of the payee or other alleged victim) the (check) (draft) (money order), drawn upon the __________ (bank) (depository); and
(3) The payment of the (check) (draft) (money order) was refused by the (bank) (depository); and
(4) The refusal to pay was because the accused had insufficient (funds in) (credit with) the __________ (bank) (depository) when the (check) (draft) (money order) was presented for payment; and
(5) The accused was given oral or written notice that the (check) (draft) (money order) was not paid when it was presented because of insufficient funds; and
(6) The accused did not pay to the person or organization entitled to payment the amount described on the (check) (draft) (money order) within 5 days after receiving notice of insufficiency of funds.
However, you are not required to draw this inference.
NOTE 4: Gambling debts and checks for gambling funds. In US v. Falcon, 65 MJ 386 (CAAF 2008), CAAF overruled its historical position that public policy prevents using the UCMJ to enforce debts incurred from legal gambling and checks written to obtain proceeds with which to gamble legally (commonly called the “gambler’s defense”). See US v. Wallace, 36 CMR 148 (CMA 1966), US v. Allberry, 44 MJ 226 (CAAF 1996); US v. Green, 44 MJ 828 (ACCA 1996).
Note that CAAF in Falcon declined to apply “a sweeping defense based on public policy” to allegations that third-party complicity negates a required element of an offense, stating the issue would be addressed on a case-by-case basis. CAAF reiterated that the government maintains the burden of proving each element beyond a reasonable doubt and the accused remains free to raise such facts that show his conduct does not satisfy a necessary element. Id., at footnote 4.
CAAF also specifically declined to address the ongoing validity of US v. Walter, 23 CMR 275 (CMA 1957), and US v. Lenton, 25 CMR 194 (CMA 1958), because Falcon dealt with legal gambling and Walter and Lenton dealt with illegal gambling. Falcon, at footnote 6. Until CAAF specifically addresses the ongoing validity of Walter and Lenton, if there is an issue whether the check was used to pay a debt from illegal gambling or the check was used to obtain funds to gamble illegally, the first paragraph of the instruction below should be given. If there is an issue that some but not all of the check arose from an illegal gambling debt or was used to obtain funds for illegal gambling, the fourth paragraph of the instruction below should also be given.
The evidence has raised the issue whether the check(s) in question (was) (were) written to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). The Uniform Code of Military Justice may not be used to enforce worthless checks used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally) when the purported victim (or payee of the check) was a party to, or actively facilitated, the gambling.
To find the accused guilty of the offense in (The) Specification(s) (___) of (The) (Additional) Charge(s) (___), you must be convinced beyond reasonable doubt that the check(s) in question (was) (were) not used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). Even if the check(s) (was) (were) used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally), if you are convinced beyond reasonable doubt that the purported victim (or payee of the check) was not a party to and did not actively facilitate the illegal gambling, and otherwise did not have knowledge of the illegal gambling-related purpose of the check, you may find the accused guilty when all other elements of the offense have been proven beyond a reasonable doubt.
(Also, if you find beyond reasonable doubt that the accused intentionally, that is, purposely, avoided the check-cashing facility’s efforts to discover that (he) (she) was on a dishonored or “bad check” list, you may find the accused guilty notwithstanding the UCMJ limitation I mentioned, when all other elements of the offense have been proven beyond a reasonable doubt.)
(The evidence has also raised the issue whether all or only part of the check(s) in question (was) (were) used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). The UCMJ limitation I mentioned only extends to that part of the check’s(s’) proceeds that (was) (were) used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). If you find this is the case and all other elements of the offense have been proven beyond a reasonable doubt, you may find the accused guilty by exceptions and substitutions only to that part of the check(s) which you are convinced beyond a reasonable doubt was not used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). You do this by excepting the value(s) alleged in the specification(s) and substituting (that) (those) value(s) of which you are convinced beyond a reasonable doubt (was) (were) not used to (pay a debt from gambling illegally) (obtain proceeds to gamble illegally).)
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable. Instruction 6-5, Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, or Instruction 5-21, Voluntary Intoxication, as bearing on the issues of intent to defraud and knowledge may be applicable.