United States v. Hardsaw

49 M.J. 256, 1998 CAAF LEXIS 800, 1998 WL 919224
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 29, 1998
DocketNo. 97-0802; Crim.App. No. 32187
StatusPublished
Cited by3 cases

This text of 49 M.J. 256 (United States v. Hardsaw) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hardsaw, 49 M.J. 256, 1998 CAAF LEXIS 800, 1998 WL 919224 (Ark. 1998).

Opinions

Opinion of the Court

SULLIVAN, Judge:

Appellant was tried by a general court-martial composed of a military judge sitting alone on April 5, 1996, at Kunsan Air Base, Republic of Korea. He was found guilty, in accordance with his pleas, of 11 specifications of making a total of 93 bad checks with an intent to defraud, in violation of Article 123a, Uniform Code of Military Justice, 10 USC § 923a. He was sentenced to a bad-conduct discharge, confinement for 7 months, total forfeitures, and reduction to the lowest enlisted grade. On June 10, 1996, the convening authority approved this sentence. On March 12, 1997, the Court of Criminal Appeals affirmed the findings of guilty and the sentence as adjudged and approved.

This Court, on August 8, 1997, granted review of the following two issues of law:

I
WHETHER APPELLANT’S PLEAS TO SPECIFICATIONS 1, 5, 6, 7, AND 11 OF THE CHARGE ARE PROVIDENT WHERE THE MILITARY JUDGE FAILED TO INQUIRE WHETHER THE NUMEROUS CHECKS REFLECTED THEREIN WERE WRITTEN FOR THE PAYMENT OF A PAST DUE OBLIGATION WITH THE IN[257]*257TENT TO DECEIVE RATHER THAN FOR THE PROCUREMENT OF ANY ARTICLE OF VALUE WITH THE INDENT TO DEFRAUD AS CHARGED.
II
WHETHER THE APPLICATION OF ARTICLES 57(a) AND 58b, UCMJ, VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT.

We hold for the Government on Issue I •because the record of trial establishes the legal validity of appellant’s guilty pleas to violating Article 123a and contains no matter “in substantial conflict” with those pleas. See United States v. Shearer, 44 MJ 330, 334 (1996); United States v. Felty, 12 MJ 438 (CMA 1982). Issue II is resolved in appellant’s favor.

Appellant pleaded guilty to 11 specifications of violating Article 123a for writing 93 worthless checks. Each specification alleged an intent to defraud, and each specification alleged the checks were written “for the procurement of lawful currency or things of value,” as required in Article 123a(l). Appellant notes that he told the judge that all the checks written to the Consolidated Mess were “either to pay on my club card or to get cash.” He then claims that his pleas to the “Consolidated Mess” specifications were invalid because an intent to deceive, not an intent to defraud, was required for the offense of using bad checks to satisfy a past-due debt obligation under Article 123a(2). See generally United States v. Wade, 14 USCMA 507, 34 CMR 287 (1964).

Appellant freely admitted that he wrote 93 bad checks with an intent to defraud while stationed in Korea. The record shows the military judge advised him on the intent to defraud as follows:

“Intent to defraud” means an intent to obtain an article or thing of value through a misrepresentation and to apply it to one’s own use or the benefit or use of another either temporarily or permanently.
MJ: Now I read you the definition earlier of what it means to defraud, and that means one part of the definition — well, I’ll tell you what. Let me just reread the entire definition.
“Intent to defraud” means an intent to obtain an article or a thing of value through a misrepresentation and apply it to one’s own use or benefit or to the use and benefit of another either temporarily or permanently.
So based upon that definition, do you agree that you intended to defraud?
ACC: Yes, sir.
MJ: So you did obtain an article or thing of value with these particular checks, and do you agree that you misrepresented to the people you were giving these checks to that there were, in fact, funds to cover these checks?
ACC: Yes, sir.
MJ: And you took the proceeds and applied it to your own benefit and use or the use and benefit of another?
ACC: Yes, sir.
MJ: Even though it may have only been temporarily in your mind?
ACC: Yes, sir.
MJ: So let me just kind of ask again. What was your intent, then, when you gave these checks to the individuals or the organizations?
ACC: To get cash.
MJ: In each case cash, or were there other—
ACC: Or to get an object that I wanted. MJ: Something of value?
ACC: Yes, sir.

(Emphasis added.)

Appellant’s claim in this case is that his particular pleas of guilty to violating Article 123a by writing bad checks to pay off a club bill were invalid. He notes that the military judge advised him that an intent to defraud was required on his part for conviction of this [258]*258offense. See Art. 123a(1). He argues, however, that use of a bad check to pay a past-due obligation must be prosecuted under Article 123a(2), and that it requires an intent to deceive. He concludes, “As such, Appellant’s pleas as to Specifications 1, 5, 6, 7, and 11 of the Charge were improvident as the record contains sufficient evidence in substantial conflict with his pleas of guilty.” Final Brief at 8. We disagree.

Article 123a provides, in pertinent part:

§ 923a. Art. 123a. Making, drawing, or uttering check, draft, or order without sufficient funds
Any person subject to this chapter who—
(1) for the procurement of any article or thing of value, with intent to defraudor
(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 ...

This statute, in its two sections, clearly distinguishes between use of a bad check to obtain something of value and use of a bad check to satisfy a past-due debt. See Wade, 14 USCMA at 510, 34 CMR at 290. Nevertheless, we conclude that payment of a past-due obligation by a bad check with an intent to defraud, as defined by the judge in this case, is an offense under, this codal article. But cf. id. (Congress did not intend “to create ... a hybrid crime consisting of the intent taken from one section of the Article and the purpose from another.”).

In this regard, we note that an intent to defraud is generally defined at military law as'follows:

(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.

Para. 49c(14), Part IV, Manual for Courts-Martial, United States (1995 ed.);

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Cite This Page — Counsel Stack

Bluebook (online)
49 M.J. 256, 1998 CAAF LEXIS 800, 1998 WL 919224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hardsaw-armfor-1998.