Article 123a — Making, drawing, or uttering check, draft, or order without sufficient funds

Part IV · Punitive Articles

Article 123a. Making, drawing, or uttering check, draft, or order without sufficient funds · MCM ¶ 70

2024 Manual for Courts-Martial, United States

(a) Text of statute. Any person subject to this chapter who—

(1) for the procurement of any article or thing of value, with intent to defraud; or

(2) for the payment of any past due obligation, or for any other purpose, with intent to deceive; makes, draws, utters, or delivers any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full upon its presentment, shall be punished as a court-martial may direct. The making, drawing, uttering, or delivering by a maker or drawer of a check, draft, or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee’s possession or control, is prima facie evidence of his intent to defraud or deceive and of his knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft, or order was not paid on presentment. In this section, the word “credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft, or order.

(b) Elements.

(1) For the procurement of any article or thing of value, with intent to defraud.

(a) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money payable to a named person or organization;

(b) That the accused did so for the purpose of procuring an article or thing of value;

(d) That at the time of making, drawing, uttering, or delivery of the instrument the accused knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment.

(2) For the payment of any past due obligation, or for any other purpose, with intent to deceive.

(a) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money payable to a named person or organization;

(b) That the accused did so for the purpose or purported purpose of effecting the payment of a past due obligation or for some other purpose;

(d) That at the time of making, drawing, uttering, or delivering of the instrument, the accused knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment.

(1) Written instruments. The written instruments covered by this article include any check, draft (including share drafts), or order for the payment of money drawn upon any bank or other depository, whether or not the drawer bank or depository is actually in existence. It may be inferred that every check, draft, or order carries with it a representation that the instrument will be paid in full by the bank or other depository upon presentment by a holder when due.

(2) Bank or other depository. Bank or other depository includes any business regularly but not necessarily exclusively engaged in public banking activities.

(3) Making or drawing. Making and drawing are synonymous and refer to the act of writing and signing the instrument.

(4) Uttering or delivering. Uttering and delivering have similar meanings. Both mean transferring the instrument to another, but uttering has the additional meaning of offering to transfer. A person need not personally be the maker or drawer of an instrument in order to violate this article if that person utters or delivers it. For example, if a person holds a check which that person knows is worthless, and utters or delivers the check to another, that person may be guilty of an offense under this article despite the fact that the person did not personally draw the check.

(5) For the procurement. “For the procurement” means for the purpose of obtaining any article or thing of value. It is not necessary that an article or thing of value actually be obtained, and the purpose of the obtaining may be for the accused’s own use or benefit or for the use or benefit of another.

(6) For the payment. “For the payment” means for the purpose or purported purpose of satisfying in whole or in part any past due obligation. Payment need not be legally effected.

(7) For any other purpose. For any other purpose includes all purposes other than the payment of a past due obligation or the procurement of any article or thing of value. For example, it includes paying or purporting to pay an obligation which is not yet past due. The check, draft, or order, whether made or negotiated for the procurement of an article or thing of value or for the payment of a past due obligation or for some other purpose, need not be intended or represented as payable immediately. For example, the making of a postdated check, delivered at the time of entering into an installment purchase contract and intended as payment for a future installment, would, if made with the requisite intent and knowledge, be a violation of this article.

(8) Article or thing of value. Article or thing of value extends to every kind of right or interest in property, or derived from contract, including interests and rights which are intangible or contingent or which mature in the future.

(9) Past due obligation. A past due obligation is an obligation to pay money, which obligation has legally matured before making, drawing, uttering, or delivering the instrument.

(10) Knowledge. The accused must have knowledge, at the time the accused makes, draws, utters, or delivers the instrument, that the maker or drawer, whether the accused or another, has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of the instrument in full upon its presentment. Such knowledge may be proved by circumstantial evidence.

(11) Sufficient funds. “Sufficient funds” refers to a condition in which the account balance of the maker or drawer in the bank or other depository at the time of the presentment of the instrument for payment is not less than the face amount of the instrument and has not been rendered unavailable for payment by garnishment, attachment, or other legal procedures.

(12) Credit. “Credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of the check, draft, or order. An absence of credit includes those situations in which an accused writes a check on a nonexistent bank or on a bank in which the accused has no account.

(13) Upon its presentment. “Upon its presentment” refers to the time the demand for payment is made upon presentation of the instrument to the bank or other depository on which it was drawn.

(14) Intent to defraud. “Intent to defraud” means an intent to obtain, through a misrepresentation, an article or thing of value and to apply it to one’s own use and benefit or to the use and benefit of another, either permanently or temporarily.

(15) Intent to deceive. “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.

(16) The relationship of time and intent. Under this article, two times are involved: (a) when the accused makes, draws, utters, or delivers the instrument; and (b) when the instrument is presented to the bank or other depository for payment. With respect to (a), the accused must possess the requisite intent and must know that the maker or drawer does not have or will not have sufficient funds in, or credit with, the bank or the depository for payment of the instrument in full upon its presentment when due. With respect to (b), if it can otherwise be shown that the accused possessed the requisite intent and knowledge at the time the accused made, drew, uttered, or delivered the instrument, neither proof of presentment nor refusal of payment is necessary, as when the instrument is one drawn on a nonexistent bank.

(17) Statutory rule of evidence. The provision of this article with respect to establishing prima facie evidence of knowledge and intent by proof of notice and nonpayment within 5 days is a statutory rule of evidence. The failure of an accused who is a maker or drawer to pay the holder the amount due within 5 days after receiving either oral or written notice from the holder of a check, draft, or order, or from any other person having knowledge that such check, draft, or order was returned unpaid because of insufficient funds, is prima facie evidence (a) that the accused had the intent to defraud or deceive as alleged; and (b) that the accused knew at the time the accused made, drew, uttered, or delivered the check, draft, or order that the accused did not have or would not have sufficient funds in, or credit with, the bank or other depository for the payment of such check, draft, or order upon its presentment for payment. Prima facie evidence is that evidence from which the accused’s intent to defraud or deceive and the accused’s knowledge of insufficient funds in or credit with the bank or other depository may be inferred, depending on all the circumstances. The failure to give notice referred to in the article, or payment by the accused, maker, or drawer to the holder of the amount due within 5 days after such notice has been given, precludes the prosecution from using the statutory rule of evidence but does not preclude conviction of this offense if all the elements are otherwise proved.

(18) Affirmative defense. Honest mistake is an affirmative defense to offenses under this article. See R.C.M. 916(j).

(d) Maximum punishment.

(1) For the procurement of any article or thing of value, with intent to defraud, in the face amount of :

(a) $1,000 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

(b) More than $1,000. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(2) For the payment of any past due obligation, or for any other purpose, with intent to deceive. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

(e) Sample specifications.

(1) For the procurement of any article or thing of value, with intent to defraud. In that _______________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________ 20___, with intent to defraud and for the procurement of (lawful currency) (and) (________ (an article) (a thing) of value), wrongfully and unlawfully ((make (draw)) (utter) (deliver) to __________,) a certain (check) (draft) (money order) upon the (_________ 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.

(2) For the payment of any past due obligation, or for any other purpose, with intent to deceive. In that ______________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _________ 20____, 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.

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. Using this specification. This is a different offense from Instruction 3a-47a-2, Check, Worthless, with Intent to Deceive. As the specification alleges that the making, drawing, uttering, or delivering was for the procurement of any article or thing of value, the requisite intent is the intent to defraud and the specification must so allege. See US v. Wade, 34 CMR 287 (CMA 1964).

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.

Maximum punishment

(If “mega-spec” alleged, see US v. Mincey, 42 MJ 376 (CAAF 1995)).

(1) $1,000 or less: BCD, TF, 6 months, and E-1. (Category 1)

(2) More than $1,000: DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, with intent to defraud and for the procurement of (lawful currency) (and) (__________ (an article) (a thing) of value), wrongfully and unlawfully (make) (draw) (utter) (deliver) to __________,) a certain (check) (draft) (money order) upon the (__________ 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.

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 of procuring an article or thing of value, to wit: (state the article/thing alleged);

(3) That the accused committed the act with intent to defraud; 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.

Definitions & 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 purpose of procuring” means for the purpose of obtaining any article or thing of value. It is not necessary that an article or thing of value actually be obtained.

“Intent to defraud” means an intent to obtain, through a misrepresentation, an article or thing of value and to apply it to one’s own use and benefit or to the use and benefit of another, either temporarily or permanently.

(“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 create a prima facie presumption of knowledge and intent by proof of notice and nonpayment within five 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 defraud 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. Evidence inconsistent with intent or knowledge raised. The military judge must be on the alert for evidence inconsistent with the requisite guilty intent or knowledge, such as evidence that the accused believed that instrument was to be used only as evidence of indebtedness, or that there were or would be sufficient funds to cover the instrument. Such evidence will provide a basis for submission of the issue to the members with proper instructions. For guidance in this area, see Instruction 5-13, Ignorance or Mistake of Fact or Law.

NOTE 5. 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. The 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 6. 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.

Source: Instruction 3a-70-1 · view original on jagcnet.army.mil

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).

Maximum punishment

BCD, TF, 6 months, and E-1 (if “mega-spec” alleged, see US v. Mincey, 42 MJ 376 (CAAF 1995)). (Category 1)

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.

Elements

(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.

Definitions & 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.

(“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.

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.

Source: Instruction 3a-70-2 · view original on jagcnet.army.mil