United States v. Eatmon

47 M.J. 534, 1997 CCA LEXIS 460, 1997 WL 545892
CourtUnited States Air Force Court of Criminal Appeals
DecidedAugust 28, 1997
DocketACM 32664
StatusPublished
Cited by4 cases

This text of 47 M.J. 534 (United States v. Eatmon) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eatmon, 47 M.J. 534, 1997 CCA LEXIS 460, 1997 WL 545892 (afcca 1997).

Opinion

OPINION OF THE COURT

MORGAN, C.H., II, Judge:

Members convicted appellant, contrary to her pleas, of writing 156 checks over the course of nearly a year, with the intent to defraud, in violation of Article 123a, 10 U.S.CA § 923a Uniform Code of Military Justice (UCMJ), and 42 more dishonored checks, in violation of Article 134, UCMJ. Appellant was also found guilty in accordance with her pleas of using a government American Express Card for personal purposes and [536]*536of dishonorable failure to pay an American Express bill of nearly $1500 in violation of Articles 92 and 134, respectively. Members sentenced her to a dishonorable discharge, confinement for six months, and reduction to E-4. The convening authority approved the sentence as adjudged.

Appellant assigns five errors1 for our consideration, one of which warrants extended discussion, but none of which we find entitles her to any relief.

Facts

Appellant, while assigned to Sembach Air Base, Germany, papered virtually every government Nonappropriated Fund Instrumentality (NAFI) in the Ramstein-Sembaeh area with dishonored checks2 over approximately a one year period. One hundred forty of the 155 checks charged under Article 123a were to various outlets of the Army Air Force Exchange Service (AAFES). Of these, the vast majority were uttered to the Sembach Shoppette. Three dishonored checks were to the Auto Exchange to cover the downpayment for a new car, and 12 were to the commissary. Of the 12 checks to the commissary, which constituted one specification, one was excepted by the members in their findings of guilt.

Charge II was divided into two specifications of dishonored checks in violation of Article 134. Specification 1 included two checks for $100 and $125 respectively to the Ramstein Enlisted Club in January of 1995. Specification 2 was for 40 checks, written between January 2 and March 3, 1996, to either the Ramstein or the Sembach Bowling Centers. The record reveals that appellant’s squadron was deluged with telephone calls and notices from appellant’s various creditors, and that she was referred to two different professional financial counselors. It further reveals that when a given bank or credit union closed her account for excessive overdrafts, she would simply open an account at another bank or credit union. When her check-cashing binges encountered a temporary hiatus because of an effective ban on check writing, or she momentarily could not find a bank to take her account, she turned to a government-issued American Express card. The practice of writing bad checks persisted weE past the preferral of charges, apparently even up to the eve of trial.

I

Whether the Trial Judge Erred in Failing to Dismiss Specification Where Appellant Alleged Checks Were Cashed to Use in Slot Machines

During a pretrial session, appellant moved to dismiss both specifications of Charge II, aEeging that because she cashed the checks to facilitate gambhng, she was protected by the holding of the Court of Appeals for the Armed Forces in United States v. Allbery, 44 M.J. 226 (1996). She testified on the motion in a manner which can be best described as erratic, inconsistent, and in places contradictory. The military judge, remarking that appeUant was “not a particularly credible witness,” denied the motion, finding that the two checks which were the subject of specification 1, made out to the Ramstein Enlisted Club in early 1995, were [537]*537not uttered to facilitate gambling. Appellant does not now contest this finding. She does dispute the second part of his ruling, however, wherein he found that “some” of the 40 checks in specification 2 had been cashed to put into the slot machines, but nevertheless declined to dismiss the specification or any of the checks contained within it. This, appellant insists, was error.

Some history is in order here. The seminal case upon which Allbery rests is United States v. Wallace, 36 C.M.R. 148, 1966 WL 4432 (C.M.A.1966). Assigned to a small post in Germany, Major Wallace became addicted to the slot machines at the Officers Club. A bachelor, Major Wallace was wont to frequent the club almost nightly, and nearly always gambled when he did so. Club management was not only aware of this proclivity, but fostered it, accepting Wallace’s IOUs, taking post-dated checks, and rolling dishonored checks over into Wallace’s club bill. Wallace himself was on the Club’s Board of Governors. Over the course of time, he wrote some $7,000 in checks, a princely sum for the time, of which $2,000 went unredeemed. He was prosecuted and convicted for some 37 dishonored checks in violation of Article 134 and Article 133, UCMJ, 10 U.S.C.A §§ 934, 933. In an opinion authored by Judge Homer Ferguson, a divided court overturned Wallace’s conviction, holding that the Club could not “look to the law as ‘a club to hold over those foolish enough to engage in this type of dissipation.’” Wallace, 36 C.M.R. at 151 (citing United States v. Walter, 23 C.M.R. 274, 278, 1957 WL 4479 (C.M.A1957)).

In Walter, the Court had declined to enforce bad script written by a staff sergeant to cover his losses in an illegal poker game, hinging its decision on the public policy aversion to use of the courts to enforce gambling debts. Wallace enlarged Walter by discerning no meaningful distinction in the fact that the gambling in Major Wallace’s case was officially sanctioned.

Looking to the public policy considerations underlying Wallace, and the lack of unanimity, a separate panel of this Court decided that it was no longer good law in United States v. Allbery, 41 M.J. 501 (AF.Ct.Crim. App.1994). We were promptly reversed by our superior Court whose four different opinions agreed on only one thing — even if Wallace were no longer good law, we were not the ones to say so. Only two of the opinions agreed that Wallace was still vital, a third declined to address it, and two more believed it was ripe for reversal.

The important thing to remember about Wallace and Allbery is that in both instances it was conceded that all or nearly all of the checks at issue had been to pay for gambling. Wallace, 36 C.M.R. at 149 n. 1; Allbery, 41 M.J. at 501-502. In both cases, as well, it is clear that the government was at the very least fully cognizant of the appellants’ intention to use the checks to play the slots, and, if it did not actively abet that intention (as in Wallace), it certainly did nothing to prevent it (as in Allbery).

Therein lies a crucial distinction. According to the factual findings of the military judge, which we will respect unless they are without support in the record, appellant was on a “bad-check list” during all or most of the time she was cashing the checks at the two bowling centers. She acknowledged as much in her testimony. Thus, she should not have been able to cash checks at all at either facility. She admitted that she had a “friend” who worked at the Ramstein Bowling Center, and who disregarded the prohibition and cashed her checks anyway. She was herself employed part-time as a cashier at the Sembach Bowling Center, and thus was in a position to cash her own checks. She also testified that she had another “friend” at the Sembach Bowling Center who cashed her checks for her.

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Related

United States v. Brewster
64 M.J. 501 (Air Force Court of Criminal Appeals, 2006)
United States v. Pauling
60 M.J. 91 (Court of Appeals for the Armed Forces, 2004)
United States v. Eatmon
49 M.J. 273 (Court of Appeals for the Armed Forces, 1998)

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Bluebook (online)
47 M.J. 534, 1997 CCA LEXIS 460, 1997 WL 545892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eatmon-afcca-1997.