United States v. Hurko

36 M.J. 1176, 1993 CMR LEXIS 159, 1993 WL 112542
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 9, 1993
DocketNMCM 90 3067
StatusPublished
Cited by3 cases

This text of 36 M.J. 1176 (United States v. Hurko) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hurko, 36 M.J. 1176, 1993 CMR LEXIS 159, 1993 WL 112542 (usnmcmilrev 1993).

Opinion

LARSON, Chief Judge:

In this appeal, the appellant contests his guilt of the worthless check and bad debt offenses of which he was convicted. We find merit in his position as to the first 20 worthless check specifications and set those aside. As to the remainder of the findings of guilty and the sentence, we affirm.

Charged with 54 specifications of making and uttering worthless checks in violation of Article 123a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 923a (Charge I) and one specification of dishonorable failure to pay a just debt in violation of Article 134, UCMJ, 10 U.S.C. § 934 (Charge II), the appellant was convicted, contrary to his pleas,1 by a general court-martial composed of officer members, of the lesser included offense (LIO) of dishonorable failure to maintain sufficient funds under Article 134, UCMJ, 10 U.S.C. § 934 for each of the first 20 worthless check specifications. For the remaining 34 worthless check specifications, he was convicted as charged. He was also convicted of the single specification of dishonorable failure to pay a just debt under Charge II. The appellant was sentenced to confinement for nine months, total forfeitures, reduction to pay grade E-1 and a bad-conduct discharge.

First, the facts that pertain to our treatment of Charge I are as follows. Before his deployment to Okinawa, Japan, the appellant opened a checking account on 10 February 1989 with the Bank of Hawaii (called the “Okinawa” account) with an initial deposit of $275.00. He and his wife agreed that his paycheck would be deposited by direct deposit into her checking account with the Bank of Hawaii (called the “home” account). On each payday, she would transfer $200.00 to the Okinawa account. In addition, she would deposit the couple’s federal and state tax refunds, anticipated to be approximately $1300.00 and to arrive near the end of March, into the Okinawa account.

The appellant acquired cash and merchandise by writing checks on his Okinawa account to various military outlets on the island. By 15 April, when the deposits he expected his wife to have made would have totalled $2300.00, he had written approximately $2000.00 worth of checks (including other minor debits such as service fees). Unfortunately, Mrs. Hurko had not kept up her end of the bargain and had deposited only $450.00 over that period. The result was that virtually all checks written by the appellant after 24 March were returned for insufficient funds.

The appellant and his wife apparently did not include any discussion of these financial matters in their periodic but brief phone calls. In addition, the appellant did not receive his mail during this period so he was unaware of the contents of the bank statements. In fact, there is no evidence that he became aware of his wife’s failure to make the agreed deposits until on or shortly before 12 April. At that time, he made an account balance inquiry with his ATM card. A bank statement introduced at trial shows the balance to be zero at the time of this inquiry. From that fact, as well as the fact that he began making ATM withdrawals from the home account rather than the Okinawa account immediately after the inquiry, we can reasonably conclude that, by 12 April, he learned that his Okinawa account balance was zero and must have realized that his wife was not making the deposits as promised.

Despite the import of this information, the appellant intensified his check writing activity. From 16 April through 11 May, he wrote 36 bad checks for a total of $3362.00 on the Okinawa account. This total — especially when combined with the pre-16 April total — far exceeded the total of the deposits his wife had agreed to make. In early May, while on emergency leave in Hawaii, he first learned through a [1178]*1178phone call from his sergeant that he was accumulating worthless checks. In June, he began to make restitution to some of the victim payees. Others were made whole through automatic checkage of his pay.

At trial, the appellant maintained that he had no intent to defraud his payees because he believed that the checks would be covered by the deposits his wife had agreed to make. He applied this argument up to the point in time when the bounced check total began to exceed the expected deposits total. For the checks written after that time, he argued that he could not form the specific intent to defraud because of his nearly constant state of alcohol-induced intoxication after normal working hours when he wrote the checks.

In his instructions to the members, the military judge included the elements of the LIO of dishonorable failure to maintain sufficient funds as well as instructions on the existence of a mistake of fact defense with respect to the charged offense under Article 123a, UCMJ. He did not advise them that the mistake of fact defense applied as well to the LIO, nor was such an instruction requested by the defense.

We now turn to a brief discussion of the law that pertains to the offense of dishonorable failure to maintain sufficient funds. To prove the element of dishonor required for conviction of that offense, the accused’s conduct must be characterized by deceit, evasion, false promises or other such culpable circumstances as deliberate nonpayment or gross indifference toward one’s financial obligations. Manual for Courts-Martial, para 68c. United States v. Downard, 6 U.S.C.M.A. 538, 20 C.M.R. 254 (1955). There is no evidence of deceit, evasion, false promises or deliberate nonpayment in this record, at least none that appeared before he learned of his zero account balance on or about 12 April. The only question before the fact-finders at trial, and before us now, with respect to the first 20 specifications of Charge I is whether the appellant’s conduct in failing to determine whether his wife was in fact making the agreed deposits or, in some other manner, to learn his actual account balance can be characterized as gross indifference.

“Gross” means “flagrant” or “extreme.” United States v. Hensley, 26 M.J. 841 (A.C.M.R.1988). Failure to keep an accurate account of one’s account balance is no more than simple negligence and, without more, does not rise to the level of gross indifference. Id. In particular, the case law is replete with examples where an honest reliance on anticipated deposits sufficient in amount to cover checks written on the account does not satisfy the element of dishonor. See, e.g., United States v. Richardson, 15 U.S.C.M.A. 400, 35 C.M.R. 372 (1965); United States v. Brown, 14 U.S.C.M.A. 635, 34 C.M.R. 415 (1964); United States v. Bullock, 12 U.S.C.M.A. 142, 30 C.M.R. 142 (1961); Hensley. Of course, the expectation of anticipated deposits must be believable. Whether the expectation is believable rests largely on how reasonable it is. See United States v. Barnard, 32 M.J. 530 (A.F.C.M.R.1990) (accused’s assertion that he had relied on a $8000.00 mail-order loan to cover the checks he wrote was incredible on its face). The appellant’s arrangement with his wife and the expectations that arose from that arrangement are reasonable, and no evidence was introduced that challenged the reasonableness of his belief.2

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Bluebook (online)
36 M.J. 1176, 1993 CMR LEXIS 159, 1993 WL 112542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hurko-usnmcmilrev-1993.