U.S. v. Falcon, 65 M.J. 386

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge is obligated to reopen the plea inquiry when a possible defense has been raised and not satisfactorily refuted because such a matter would be inconsistent with the accused’s guilty plea; however, the mere possibility of a defense, without more, does not give rise to this obligation
2. the military judge did not abuse his discretion when he did not reopen the providence inquiry to advise the accused of the possibility of a partial mental responsibility defense to a charge of making and uttering checks without sufficient funds under Article 123a, UCMJ, because of statements made during the trial relating to the accused’s gambling addiction and his diagnosis as pathological gambler, where there was the lack of any testimony that the accused’s diagnosis could have affected his ability to form the specific intent to defraud and the lack of any authority that such a diagnosis may provide a partial mental responsibility defense

Core Criminal Law Subjects: Crimes: Article 123a - Making, Drawing, or Uttering Check, Draft, or Order without Sufficient Funds Pre-2019 offenses

1. the elements of Article 123a, UCMJ, include knowledge by the accused that the accused did not have sufficient funds at the time of writing the check and that the act was committed with the intent to defraud; the actions of the payee have no impact where an offense requires the payor to act with a specific intent to defraud, as does Article 123a, UCMJ; unlike an Article 134, UCMJ, offense, an Article 123a, UCMJ, offense is complete once the check is proffered and before the payor acts or the payee uses the money
2. the gambler’s defense does not extend to Article 123a, UCMJ

Core Criminal Law Subjects: Crimes: Article 134 -- Check, Worthless, Making and Uttering -- by Dishonorably Failing to Maintain Funds Pre-2019 offenses

1. a worthless check offense under Article 134, UCMJ, requires that the accused dishonorably fail to maintain funds after the check was made and uttered; the offense does not require an intent to defraud or knowledge by the accused that he has insufficient funds to cover the check; the offense can be satisfied with bad faith or gross indifference, which is a lesser mens rea than the specific intent to defraud required in Article 123a, UCMJ
2. the gambler’s defense to worthless check offenses under Article 134, UCMJ, is overruled

Core Criminal Law Subjects: Defenses: Gambler's Defense

1. once applicable to making worthless checks under Article 134, UCMJ, where the checks were accepted by a service club for a gambling transaction, the club knew the checks were worthless, and the conduct was not dishonorable, the gambler’s defense does not extend to Article 123a, UCMJ, based on the differences between the two statutes; while the actions of the service club impacted the “dishonorable” determination in for Article 134, UCMJ, offense, the actions of the payee have no impact where an offense requires the payor to act with a specific intent to defraud, as does Article 123a, UCMJ; also, an Article 123a, UCMJ, offense, unlike an Article 134, UCMJ, offense, is complete once the check is proffered and before the club acts or the accused uses the money for gambling, which further distinguishes the gambler’s defense and Article 123a, UCMJ
2. the gambler’s defense, once recognized in United States v. Wallace, 15 CMA 659, 36 CMR 148 (1966), was a court-made principle based wholly on a public policy against gaming, whether legal or illegal; since Wallace, legal gambling has grown both in acceptance and popularity in society, and governments at all levels sanction and often tax a broad scope of gambling activities; when the military allows gambling at service clubs around the globe, it is inconsistent for an appellate court to continue to classify legal gambling as being against public policy; debts and offenses that result from legal gambling should not be treated differently than those that occur from other legal conduct; when a servicemember writes a check to participate in legal gambling, he or she should not be able to rely on antiquated public policy to avoid his or her legal obligations; where a judicial decision is based on public policy and that policy has changed, the doctrine of stare decisis does not prohibit an appellate court from revisiting that decision; because the rationale supporting the gambler’s defense is no longer valid, Wallace is now overruled

Trial Stages: Merits: Guilty Pleas

1. a military judge is obligated to reopen the plea inquiry when a possible defense has been raised and not satisfactorily refuted because such a matter would be inconsistent with the accused’s guilty plea; however, the mere possibility of a defense, without more, does not give rise to this obligation
2. a guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea
3. the military judge did not abuse his discretion when he did not reopen the providence inquiry to advise the accused of the possibility of a partial mental responsibility defense to a charge of making and uttering checks without sufficient funds under Article 123a, UCMJ, because of statements made during the trial relating to the accused’s gambling addiction and his diagnosis as pathological gambler, where there was the lack of any testimony that the accused’s diagnosis could have affected his ability to form the specific intent to defraud and the lack of any authority that such a diagnosis may provide a partial mental responsibility defense

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea
2. an appellate court reviews de novo the military judge’s legal conclusion that an appellant’s pleas were provident

Miscellaneous Matters: Judicial Review: Stare Decisis

1. the doctrine of stare decisis plays an important role in an appellate court’s decision-making; applying stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process; however, stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision
2. precedent can be overruled if changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective
3. where a judicial decision is based on public policy and that policy has changed, the doctrine of stare decisis does not prohibit an appellate court from revisiting that decision