Knowingly Writing Bad Checks From Your Own Account Cannot Lead to an Uttering Conviction in Massachusetts

The Massachusetts Appeals Court today reversed the uttering conviction of a man who had withdrawn money from his account that had been funded by bad checks from his other account.  The name of the case is Commonwealth v. Bonilla.

The defendant was charged with uttering and larceny after attempting to swindle money from his bank.  In February of 2013, the defendant opened six bank accounts at Metro Credit Union.  He deposited checks in the amount of $5,000 into each account (for a total of $30,000).  The checks he deposited came from his existing accounts at two other banks.  However, there was not enough money in either of his two existing accounts to cover the six $5,000 checks deposited into the new accounts.  Metro Credit Union had a policy allowing a customer to withdraw up to $200 before a check cleared.  The defendant used this rule to his advantage and withdrew $200 from three of his new Metro Credit Union accounts (for a total of $600).  After the $5,000 checks bounced, the defendant made no effort to reimburse Metro Credit Union for the $600 he stole.  A jury convicted the defendant of uttering and larceny and a judge sentenced him to serve one year in jail.

The defendant appealed his convictions.  The Appeals Court upheld the larceny conviction.  Larceny is defined as taking another’s property, without a right to do so, and with the intent to permanently deprive the owner of the property.  The Court said the jury was entitled to reasonably infer the defendant would have known he didn’t have the money to write $30,000 worth of checks to Metro Credit Union.  Further, the jury could have inferred the defendant intended to permanently deprive Metro Credit Union of the $600 after the defendant failed to repay it when the checks bounced.  The Commonwealth had therefore satisfied its burden in proving beyond a reasonable doubt the defendant committed larceny from Metro Credit Union.

The uttering conviction, on the other hand, was not proven beyond a reasonable doubt and the Appeals Court reversed it.  In order to prove a defendant uttered a false instrument, the Commonwealth must establish the defendant: (1) presented as genuine; (3) an instrument; (3) he knew was forged; (4) with the intent to defraud the recipient.  While there is evidence in this case the defendant intended to defraud Metro Credit Union, there is no evidence that the bounced checks had been forged or altered in any way.  The checks were certainly written in bad faith, but they were legitimately connected to the defendant’s old bank accounts.  Furthermore, the defendant signed his own name and did not alter any of the pertinent information contained on the checks.  Therefore, while the defendant clearly intended to defraud the bank, his conduct did not satisfy the elements of the uttering statute.

This case is a good illustration of the importance of the Commonwealth charging defendants under the correct criminal law.  Many times it is clear that a defendant has committed a crime, but if he is not charged with the correct crime, he will be acquitted.  If you are charged with a crime, you should consult with an experienced criminal defense attorney who will be able to identify these types of issues.