Gambler's Defense — Defenses — CAAF Opinion Digest

United States v. Falcon, 65 M.J. 386 · decided Jan 9, 2008 · No. 07-0105/NA

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
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prohibit an appellate court from revisiting that decision; because the rationale supporting the gambler’s defense is no longer valid, Wallace is now overruled