United States v. Ewing

50 M.J. 622, 1998 CCA LEXIS 470, 1998 WL 1038996
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 23, 1998
DocketMisc. Dkt. No. 98-06
StatusPublished
Cited by2 cases

This text of 50 M.J. 622 (United States v. Ewing) 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. Ewing, 50 M.J. 622, 1998 CCA LEXIS 470, 1998 WL 1038996 (afcca 1998).

Opinion

OPINION OF THE COURT

YOUNG, Senior Judge:

At a general court-martial convened at Nellis Air Force Base, Nevada, the respondent was arraigned on seven specifications alleging he made and uttered 19 worthless checks1 to seven Las Vegas casinos, totaling $1975, with the intent to defraud. Article 123a, UCMJ, 10 U.S.C. § 923a. Upon motion by the defense, the military judge dismissed six specifications and all of a seventh specification except for one check for $100, based on United States v. Allbery, 44 M.J. 226 (1996) and United States v. Wallace, 36 C.M.R. 148, 1966 WL 4432 (C.M.A.1966). The petitioner requests that we reverse and order the specifications reinstated. We find the military judge erred in applying the law [623]*623to the facts and reverse his decision ordering dismissal of the specifications.

I. Jurisdiction and Standard of Review

The United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a specification in cases in which a punitive discharge may be adjudged. Article 62(a)(1), UCMJ, 10 U.S.C. § 862(a)(1). The dismissal of the specifications terminates the proceedings with respect to the checks. See United States v. Sepulveda, 40 M.J. 856, 858 (A.F.C.M.R.1994). Each of the dismissed specifications carries a maximum punishment which includes a punitive discharge. Manual for Courts-Martial, United States (MCM), Part IV, H 49e(l) (1995 ed.).

Despite our fact-finding powers under Article 66(c), UCMJ, 10 U.S.C. § 866(c), in ruling on issues under Article 62, we “may act only with respect to matters of law.” Article 62(b), UCMJ, 10 U.S.C. § 862(b). On matters of fact, we are bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous. United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985), We are without authority to find facts in addition to those found by the military judge. Sepulveda, 40 M.J. at 858.

II. Facts

Since we are limited in our analysis to the facts found by the military judge, we quote his findings verbatim.

The accused cashed 19 worthless checks totaling $1975 on his Nevada Federal Credit Union checking account at seven different casinos in Las Vegas, Nevada, between 17 August 1997 and 25 April 1998. The names of the seven casinos along with the dates and amounts of the 19 worthless checks are identified in the seven specifications of the Article 123a Charge against the Accused. The accused’s Nevada Federal Credit Union checking account was closed on 25 August 1997 due to excessive overdrafts on his account. The accused was notified of the closure of his Nevada Federal Credit Union checking account by letter from the credit union dated 12 August 1997 and mailed to his last known address.
None of the seven casinos at which the accused uttered the 19 worthless checks is a federal instrumentality or is located on a military installation.
On most, if not all occasions, the accused had been gambling at one of the seven casinos immediately prior to uttering the 19 worthless checks. The accused made out each check to one of the seven respective casinos for amounts varying between 50 and 100 dollars and used the cashier’s cage within each casino. There is only one central cashier’s cage in each of the seven casinos where the accused uttered the dishonored checks. The cashier’s cage in most, if not all of the seven casinos, where the accused uttered the 19 dishonored checks was located within the gaming area of each respective casino. The check cashing service at each of the seven casinos is provided as a service to the casino’s patrons. In most, if not all the casinos, the accused uttered his 19 worthless checks, the accused had to get prior approval from a casino pit boss, manager or some other responsible employee. The accused had uttered dishonored checks to Las Vegas casinos prior to 17 August 1997.
Each casino has its own procedures to assess the credit worthiness of its check cashing patrons. Likewise, each casino has its own safeguards to minimize the potential for receiving dishonored checks. There is no evidence the accused ever received rolls of coins, tokens or chips from any of the seven casinos’ cashiers in exchange for the worthless checks. He received paper currency.
The accused preferred methods of gambling included video poker and black jack. The video poker games used by the accused at the seven casinos accepted coins or paper currency of varying denominations. The black jack tables used by the accused accepted either cash or chips in exchange for cash at the tables. Each of the seven casinos at which the accused uttered worthless checks were in the gambling or gaming business. Each of the seven casinos at which the accused uttered [624]*624his worthless checks offered food and beverages to its patrons and some offered other forms of non-gambling entertainment.
With the exception of one, $100 worthless cheek uttered by the accused to Mahoney’s Silver Nugget Casino on 25 April 1998, all or all but an insignificant portion of the $1875 in currency obtained by the accused from uttering the remaining eighteen worthless cheeks, was immediately used by the accused to participate in various gambling activities at each casino where he cashed the check.
The customary practice in Las Vegas casinos is to provide gratuitous alcoholic beverages to its patrons while they gamble. Immediately prior to uttering his worthless checks, the accused had oftentimes consumed alcoholic beverages provided gratuitously by each of the seven casinos to its gambling patrons. Likewise, the accused frequently consumed gratuitous alcoholic beverages while gambling the proceeds of the worthless checks at each casino.
In September 1997, the accused was diagnosed as alcohol dependent and a pathological gambler during his in-patient treatment at David Grant Hospital, Travis Air Force Base, California. The accused’s diagnosis as alcohol dependent and a pathological gambler was confirmed in October 1997 by his treating psychologist at Nellis Air Force Base, Nevada. It is not unusual for a pathological gambler to gamble more than he or she has.
I found those portions of the accused’s testimony that relate to my essential findings to be generally credible.
Nevada criminal law allows for the prosecution of those who write dishonored checks for gambling purposes with the intent to defraud. This criminal law appears to be somewhat unique to Nevada to support the State’s gaming industry. Nevada civil law does not appear to allow for the recovery of money from those who write dishonored checks for gambling purposes to include dishonored checks written to get money with which to gamble.
The seven casinos at which the accused uttered 19 worthless checks are in the primary business of gambling.

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Bluebook (online)
50 M.J. 622, 1998 CCA LEXIS 470, 1998 WL 1038996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ewing-afcca-1998.