                        UNITED STATES, Appellee

                                    v.

                  Esteban FALCON, Postal Clerk Seaman
                          U.S. Navy, Appellant

                              No. 07-0105

                       Crim. App. No. 200401483

       United States Court of Appeals for the Armed Forces

                        Argued October 15, 2007

                        Decided January 9, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Major Richard D. Belliss, USMC (argued);
Lieutenant Brian L. Mizer, JAGC, USN.

For Appellee: Lieutenant David H. Lee, JAGC, USN (argued);
Major Brian K. Keller, USMC (on brief); Commander Paul C.
LeBlanc, JAGC, USN, and Lieutenant Jessica M. Hudson, JAGC, USN.

Military Judge:    John G. Baker


       This opinion is subject to revision before final publication.
United States v. Falcon, No. 07-0105/NA


     Judge ERDMANN delivered the opinion of the court.

     Postal Clerk Seaman Esteban Falcon entered guilty pleas and

was convicted of two specifications of opening and stealing

mail, in violation of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2000), and three specifications

of making and uttering checks without sufficient funds, in

violation of Article 123a, UCMJ, 10 U.S.C. § 923a (2000).     On

appeal to the United States Navy-Marine Corps Court of Criminal

Appeals, Falcon argued that the military judge erred in

accepting his guilty pleas to the bad check offenses without

first informing him of the availability of the “gambler’s

defense” that was recognized in United States v. Wallace, 15

C.M.A. 650, 653, 36 C.M.R. 148, 151 (1966).   The Court of

Criminal Appeals found that the defense was not applicable to

the Article 123a, UCMJ, offenses and that the pleas were

provident.   United States v. Falcon, 65 M.J. 582, 584-85 (N-M.

Ct. Crim. App. 2006).   Before this court Falcon again argues

that his pleas were not provident to the bad check charges

because of the gambler’s defense.    We agree with the conclusion

of the Court of Criminal Appeals and take this opportunity to

review the continuing validity of the Wallace decision.      We find

that the rationale supporting the gambler’s defense is no longer

valid and therefore overrule Wallace.




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United States v. Falcon, No. 07-0105/NA


     Falcon also asserts that during the providence inquiry the

military judge should have inquired into the possibility of a

partial mental responsibility defense because of statements made

during the trial relating to Falcon’s gambling addiction and his

diagnosis as pathological gambler.   We hold that the military

judge did not abuse his discretion when he did not advise Falcon

of the possibility of a partial mental responsibility defense.

                           Background

     Over the course of four months, Falcon wrote forty-nine

checks totaling $4300.00 at two enlisted clubs.1   Falcon

testified that he would cash his checks at the clubs’ cash cages

and immediately take the money and use it in the slot machines

located near the cash cages.   Falcon stipulated that he knew

that he did not have enough money in his checking account to

cover the checks and that his conduct was wrongful and unlawful.

     At the plea inquiry, Falcon stated he never represented to

the cashiers that he did not have enough money in the account to

cover the checks and his actions were designed to mislead the

staff into thinking each check was valid.   Additionally, Falcon


1
  Falcon was found guilty of three specifications of making and
uttering checks without sufficient funds. The Court of Criminal
Appeals’ factual summary reflects that he wrote forty-three
checks for a total of $3100.00. See United States v. Falcon, 65
M.J. 582, 583 (N-M. Ct. Crim. App. 2006). However, those
figures do not include the checks in the third specification.
The correct figures are forty-nine checks for a total of
$4300.00.


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United States v. Falcon, No. 07-0105/NA


stipulated that the clubs did not actively facilitate or

otherwise have any knowledge of any gambling that Falcon might

have engaged in after they cashed the checks.   Falcon testified

he intended to defraud the two clubs through his check-writing

practices.

     During the sentencing portion of the trial, Falcon

testified that he had a gambling addiction and described his

gambling practices.   The Government called Staff Sergeant (SSgt)

Daniel Poole during sentencing, who was the head of the

Pathological Gambling Counseling Services program at the base

hospital.    Poole testified that Falcon had been diagnosed as a

“pathological gambler” by a doctor at the Naval Hospital and

that Poole had performed an initial evaluation on Falcon and had

recommended counseling.

                             Discussion

Applicability of the Gambler’s Defense to Article 123a, UCMJ

     In Wallace, the defendant was convicted under Article 134,

UCMJ, with making worthless checks by dishonorably failing to

maintain sufficient funds in his account.   Id. at 650, 36 C.M.R.

at 148.   Wallace held that under the circumstances of that case,

the failure to maintain sufficient funds was not “dishonorable”

and could not be the basis of a criminal prosecution.   Id. at

653, 36 C.M.R. at 151.    In addition, Wallace concluded that

courts should not lend their offices to the enforcement of



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United States v. Falcon, No. 07-0105/NA


gaming transactions that were against public policy.   Id. at

653, 36 C.M.R. at 151.   This aspect of Wallace has come to be

known as the gambler’s defense.

     Falcon was charged with making worthless checks without

sufficient funds under Article 123a, UCMJ.   He contends the

Wallace gambler’s defense should apply to Article 123a, UCMJ,

offenses as well as Article 134, UCMJ, offenses because there is

no substantive difference between the two offenses.    He argues

that the policy considerations behind the defense should apply

for all worthless check offenses where, as here, the checks were

written to a military-operated club for cash that was spent in

the club’s nearby gambling facilities and where the worthless

checks were accepted with the club’s implicit awareness and

encouragement.

     The Government responds that the two offenses contain

different elements and that an Article 134, UCMJ, offense occurs

after the check is written when the servicemember fails to keep

money in his or her account, as opposed to an Article 123a,

UCMJ, offense where the actus reus is complete when the check is

written.   Due to the differences in the two statutes, the

Government argues that the gambler’s defense does not apply to

Article 123a, UCMJ, offenses.

     The service courts are divided as to whether the Wallace

gambler’s defense applies to Article 123a, UCMJ, offenses.     The



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United States v. Falcon, No. 07-0105/NA


Army Court of Criminal Appeals extended Wallace to Article 123a,

UCMJ, offenses but did so without analysis, simply assuming that

the gambler’s defense was applicable.   See United States v.

Greenlee, 47 M.J. 613 (A. Ct. Crim. App. 1997); United States v.

Thompson, 47 M.J. 611 (A. Ct. Crim. App. 1997); United States v.

Green, 44 M.J. 828 (A. Ct. Crim. App. 1996).    The Air Force

Court of Criminal Appeals held that the Wallace gambler’s

defense was not applicable to Article 123a, UCMJ, offenses based

on the structural differences in the statutes and the different

“intent” elements.   United States v. Ewing, 50 M.J. 622, 627-28

(A.F. Ct. Crim. App. 1998).   The Navy-Marine Corps Court of

Criminal Appeals, in the decision below, followed the Air Force

court’s approach.    Falcon, 65 M.J. at 584.

     A worthless check offense under Article 134, UCMJ, requires

that the accused “dishonorably fail[ed] to maintain funds” after

the check was made and uttered.   Manual for Courts-Martial,

United States pt. IV, para. 68 (2005 ed.) (MCM).    In contrast,

the elements of Article 123a, UCMJ, include knowledge by the

accused that the accused did not have sufficient funds at the

time of writing the check and “that the act was committed with

the intent to defraud.”   MCM pt. IV, para. 49.b.(1).   The

Article 134, UCMJ, offense does not require an intent to defraud

or knowledge by the accused that he has insufficient funds to

cover the check.    In fact, Article 134, UCMJ, can be satisfied



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United States v. Falcon, No. 07-0105/NA


with bad faith or gross indifference, which is a lesser mens rea

than the specific intent to defraud required in Article 123a,

UCMJ.    See MCM pt. IV, para. 68.c.   We therefore reject Falcon’s

argument that the elements of these two offenses are without

difference.

        In Wallace, the court concluded that issuing worthless

checks to a service club, which accepted the checks for a

gambling transaction knowing they were worthless, was not

“dishonorable” conduct under Article 134, UCMJ.    15 C.M.A. at

653, 36 C.M.R. at 151.    While the actions of the service club

impacted the “dishonorable” determination in Wallace, the

actions of the payee have no impact where an offense requires

the payor to act with a specific intent to defraud, as does

Article 123a, UCMJ.    An Article 123a, UCMJ, offense, unlike an

Article 134, UCMJ, offense, is complete once the check is

proffered and before the club acts or the accused uses the money

for gambling, which further distinguishes the gambler’s defense

and Article 123a, UCMJ.    See United States v. Margelony, 14

C.M.A. 55, 59, 33 C.M.R. 267, 271 (1963).

        Based on these differences in the two statutes, we conclude

that the gambler’s defense does not extend to Article 123a,




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United States v. Falcon, No. 07-0105/NA


UCMJ, and that the military judge did not err in accepting

Falcon’s guilty pleas without informing him of the defense.2

Revisiting Wallace

     We now turn to the background and underpinnings of the

gambler’s defense.   In 1957, this court addressed a conviction

where the accused wrote worthless checks to co-participants in

an illegal gambling game, so that he could continue gambling.

United States v. Walter, 8 C.M.A. 50, 23 C.M.R. 274 (1957).     The

court held that a conviction for larceny under those

circumstances could not be upheld because the actions in which

the participants were engaged were against public policy.    Id.

at 53-54, 23 C.M.R. at 277-78.   A year later, the court held

that a worthless check used to buy poker chips was “neither

legally nor morally” valid and that the accused’s refusal to

make good on a gambling debt was not “dishonorable.”   United

States v. Lenton, 8 C.M.A. 690, 693-94, 25 C.M.R. 194, 197-98

(1958).   Both of these decisions were based on public policy

considerations and dealt with gambling that was illegal.

Lenton, 8 C.M.A. at 693-94, 25 C.M.R. at 197-98; Walter, 8

C.M.A. at 53-54, 23 C.M.R. at 277-78.



2
  Even if the gambler’s defense had been available to Falcon
under Article 123a, UCMJ, the facts in this record would not
support its application. Falcon admitted that the clubs had no
knowledge of his gambling practices or that the checks were
worthless.


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United States v. Falcon, No. 07-0105/NA


     We next addressed the criminal liability of servicemembers

who wrote worthless checks to participate in gambling conducted

lawfully on a military installation.      Wallace, 15 C.M.A. at 650,

36 C.M.R. at 148.   Wallace was convicted under Article 134,

UCMJ, of dishonorably failing to maintain funds to support

checks he wrote to an officers’ club located in Germany.       Id. at

650, 36 C.M.R. at 148.   Wallace wrote these checks to the club

in exchange for quarters he used to play the slot machines in

the same club.   Id. at 651, 36 C.M.R. at 149.

     Wallace wrote checks of increasing value to cover the

returned checks.    Id. at 651, 36 C.M.R. at 149.     Although he had

no formal agreement with the club about his worthless checks,

the Board of Governors of the club (of which he was a member)

was aware of Wallace’s practice.       Because the Board was

confident he would eventually pay these debts, it allowed the

practice to continue.    Id. at 651, 36 C.M.R. at 149.     As in

Walter and Lenton, the court’s decision was based on public

policy considerations.   The court stated that the legality of

slot machines in American military establishments overseas was

an issue that they need not decide because “[w]hether gaming is

legal or illegal, transactions involving the same or designed to

facilitate it are against public policy, and the courts will not

lend their offices to enforcement of obligations arising

therefrom.”   Id. at 651, 36 C.M.R. at 149.



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United States v. Falcon, No. 07-0105/NA


        In reversing Wallace’s conviction, the court stated that

the “issuance of a worthless check in a gambling game or as a

means of facilitating a gaming transaction [could not] be made

the basis of a criminal prosecution.”     Id. at 653, 36 C.M.R. at

151.    The court also concluded that Wallace’s actions were not

dishonorable under Article 134, UCMJ, because the club

facilitated his bad-check writing practice by knowingly cashing

them.    Id. at 653, 36 C.M.R. at 151.

        Almost thirty years after Wallace, the Air Force Court of

Criminal Appeals rejected the rationale of Wallace in United

States v. Allbery, 41 M.J. 501, 502 (A.F. Ct. Crim. App. 1994).

The Air Force court found that legal gambling was not against

public policy and therefore “it no longer makes sense to follow

Wallace.”     Id.   On appeal, this court was unanimous in holding

that the lower court did not have the discretion to depart from

our precedents, although only a plurality found that public

policy as to gambling had not changed since Wallace.      United

States v. Allbery, 44 M.J. 226, 227-31 (C.A.A.F. 1996).

        The public policy rationale of Walter and Lenton was based

on the illegality of gambling.     Wallace extended the public

policy basis for not criminalizing gambling debts to both

illegal and legal gambling.     In the fifty years since Walter and

the forty-one years since Wallace, our society has seen legal

gambling grow both in acceptance and popularity.     Governments at



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United States v. Falcon, No. 07-0105/NA


all levels sanction and often tax a broad scope of gambling

activities.3   Public policy relating to gambling is primarily a

legislative function, and therefore, courts look to legislative

enactments for determinations of public policy.   Cf. Building

Serv. Employees Int’l Union, Local 262 v. Gazzam, 339 U.S. 532,

537-38 (1950) (finding legislative action on the organization of

laborers for bargaining purposes to be the state’s public

policy).   There can be little dispute that public policy on

legal gambling has changed over the past fifty years.     In this

environment, when the military allows gambling at service clubs

around the globe, it is inconsistent for this court to continue

to classify legal gambling as being against public policy.

     Debts and offenses that result from legal gambling should

not be treated differently than those that occur from other

legal conduct.   When a servicemember writes a check to

participate in legal gambling, he or she should not be able to




3
  In fiscal year 2005 over $50 billion were spent on state
sponsored lotteries in the United States producing over $15
billion in revenue for the states. Alicia Hansen, Tax
Foundation, Gambling with Tax Policy: States’ Growing Reliance
on Lottery Tax Revenue 1 (2007), available at http://www.tax
foundation.org/files/bp54.pdf. In 2005 commercial casinos in
the United States took in over $30 billion and paid almost $5
billion in direct gaming taxes. American Gaming Association,
State of the States: The AGA Survey of Casino Entertainment 2
(2006), available at http://www.americangaming.org/assets/files
/2006_Survey_for_Web.pdf.



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United States v. Falcon, No. 07-0105/NA


rely on antiquated public policy to avoid his or her legal

obligations.4

     We are “not unmindful of the importance that the doctrine

of stare decisis plays in our decision-making.”   United States

v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003).   Applying stare

decisis is “‘the preferred course because it promotes the

evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the

judicial process.’”   Id. (quoting Payne v. Tennessee, 501 U.S.

808, 827 (1991)).   However, “Stare decisis is not an inexorable

command; rather, it ‘is a principle of policy and not a

mechanical formula of adherence to the latest decision.’”

Payne, 501 U.S. at 828 (citation omitted).

     The gambler’s defense was neither rooted in statute nor

constitutional law, but was a court-made principle based wholly

on public policy.   Where a judicial decision is based on public

policy and that policy has changed, the doctrine of stare

decisis does not prohibit this court from revisiting that



4
  We will address allegations that third party complicity negates
a required element of a charged offense on a case-by-case basis
and not with a sweeping defense based on public policy. 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.


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United States v. Falcon, No. 07-0105/NA


decision.     Cf. Vasquez v. Hillery, 474 U.S. 254, 266 (1986).5   We

therefore conclude that Wallace should be, and is now,

overruled.6

Partial Mental Responsibility Defense

     We now turn to whether the military judge abused his

discretion when he did not inquire into and resolve alleged

factual inconsistencies that arose during the sentencing portion

of the trial.     During sentencing Falcon testified about his

gambling addiction and gambling practices, and SSgt Poole

testified that Falcon had been diagnosed as a pathological

gambler.

     Falcon argues these statements are inconsistent with the

factual stipulation and his testimony during the providence

inquiry where he acknowledged he acted knowingly with the intent

to defraud.     Falcon argues this inconsistency required the

military judge to reopen the providence inquiry and determine

whether the possibility of a defense of partial mental


5
  The Supreme Court stated that precedent can be overruled if
“changes in society or in the law dictate that the values served
by stare decisis yield in favor of a greater objective.”
Vasquez v. Hillery, 474 U.S. 254, 266 (1986). The rise of
government sanctioned gambling reflects both a change in society
and a change in law.
6
  We do not address the ongoing validity of United States v.
Walter, 8 C.M.A. 50, 23 C.M.R. 274 (1957), and United States v.
Lenton, 8 C.M.A. 690, 25 C.M.R. 194 (1958), because the case
before us addresses legal gambling and those cases dealt with
illegal gambling.


                                  13
United States v. Falcon, No. 07-0105/NA


responsibility existed.   In contrast, the Government argues the

evidence raised only the “mere possibility” of a defense and

there is no authority to support the assertion that a

pathological gambling diagnosis could negate Falcon’s specific

intent to defraud the clubs.

     “A guilty plea will be rejected only where the record of

trial shows a substantial basis in law and fact for questioning

the plea.”   United States v. Harris, 61 M.J. 391, 398 (C.A.A.F.

2005).    We review de novo the military judge’s legal conclusion

that an appellant’s pleas were provident.   Id.

     A military judge is obligated to reopen the plea inquiry

when a possible defense has been raised and not satisfactorily

refuted because such a matter would be inconsistent with the

accused’s guilty plea.    United States v. Shaw, 64 M.J. 460, 462

(C.A.A.F. 2007); see also Article 45(a), UCMJ, 10 U.S.C. § 845

(2000).   However, the “mere possibility” of a defense, without

more, does not give rise to this obligation.   Shaw, 64 M.J. at

462 (citation omitted).

     In Harris we held that where a military judge had

determined that the accused suffered from a severe mental defect

or disease at the time of the offenses, and the accused was not

aware that he suffered from such a disease at the time of the

offense, the military judge had an obligation to inquire into

the possible impact of those mental health issues on the



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United States v. Falcon, No. 07-0105/NA


appellant’s guilty pleas.   61 M.J. at 398.   In Shaw we held that

the appellant’s reference to his diagnosis of bipolar disorder

without more, “at most raised only the ‘mere possibility’ of a

conflict with the plea.”    64 M.J. at 464.

     Initially, we disagree with Falcon’s assertion that his

statements during sentencing were inconsistent with the

stipulation of facts and his earlier testimony.    At sentencing

in response to a question from defense counsel if he ever

thought about how he was going to pay for his next bet, Falcon

responded, “I -- actually -- never really thought about it,

ma’am, it just happened.    I mean -– I guess I was -– I guess

just write a check maybe get money to [gamble].”   That testimony

does not directly contradict his earlier testimony that he knew

he was writing worthless checks and that he intended to defraud

the clubs.   Similarly, the sentencing testimony that he had a

gambling addiction and had been diagnosed as a pathological

gambler does not directly contradict his earlier testimony that

he had a gambling problem and continued to gamble in order to

win back the money he lost and to feel the rush or high that

came from playing the slot machines.

     Nor do we agree with Falcon’s contention that this

testimony placed the military judge on notice to make inquiry

into the possibility of a defense of partial mental

responsibility.   In Shaw we held that the appellant’s reference



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United States v. Falcon, No. 07-0105/NA


to a bipolar disorder, without more, was not enough to require

the military judge to make further inquiry.    64 M.J. at 464.   We

made that holding even though we had previously recognized that

a bipolar disorder may constitute a severe mental disease or

defect.   See Harris, 61 M.J. at 397-98; United States v. Martin,

56 M.J. 97, 103 (C.A.A.F. 2001).     While Harris and Martin

established that bipolar disorder “may exist with enough

severity to raise a substantial question regarding the issue of

the accused’s mental responsibility[,] . . . the disorder does

not negate responsibility in all cases.”    Shaw, 64 M.J. at 463.

     Falcon has provided no authority that a diagnosis of

pathological gambling can constitute a defense of lack of mental

responsibility or partial mental responsibility.    One of the

factors the court looked at in Shaw was that there was no

factual record before the court indicating how, if at all,

Shaw’s condition influenced his plea.    Id. at 462.   Based on the

lack of any testimony that Falcon’s diagnosis could have

affected his ability to form the specific intent to defraud, and

on the lack of any authority that such a diagnosis may provide a

partial mental responsibility defense, we hold that the military

judge did not abuse his discretion when he failed to reopen the

providence inquiry.




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United States v. Falcon, No. 07-0105/NA


                            Conclusion

     We hold the Wallace gambler’s defense does not apply to

Falcon’s Article 123a, UCMJ, 10 U.S.C. § 923a (2000), conviction

for worthless checks and that the military judge did not abuse

his discretion in not inquiring into a possible partial mental

responsibility defense.   Finally, we prospectively overrule

United States v. Wallace, 15 C.M.A. 650, 36 C.M.R. 148 (1966),

and the concept of a gambler’s defense.   The decision of the

United States Navy-Marine Corps Court of Criminal Appeals is

affirmed.




                                17
