Executive Order 11009

AMENDING THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951TO IMPLEMENT SECTION 923a OF TITLE 10, UNITED STATES CODE, RELATING TO PROSECUTION OF BAD CHECK OFFENSES

     By virtue of the authority vested in me by the Uniform Code of Military Justice (established by the Act of May 5, 1950, 64 Stat. 107) and as President of the United States, it is ordered that the Manual for Courts-Martial, United States, 1951 (prescribed by Executive order No. 10214 of February 8, 1951), be, and it is hereby, amended as follows:

     1. The offenses and punishments listed in the Table of Maximum Punishments, contained in paragraph 127c, are amended as follows:

     (a) By inserting the following new item:

     "Article 123a

     Offenses: Check, worthless, making, drawing, uttering, delivering, with intent to defraud (for the procurement of an article or thing of value), in the face amount of:

     (a) $50 or less;

     (b) $100 or less and more than $50;

     (c) more than $100.

     Punishments: (a) Bad conduct discharge, forfeiture of all pay and allowances and confinement at hard labor not to exceed six months.

     (b) Bad conduct discharge, forfeiture of all pay and allowances and confinement at hard labor not to exceed one year

     (c) Dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor not to exceed five years."

"Article 123a

     Offenses: Check, worthless, making, drawing, uttering, delivering, with intent to deceive (for payment of past due obligation or any other purpose).

     Punishments: Bad conduct discharge, forfeiture of all pay and allowances and confinement at hard labor not to exceed six months."

     (b) By striking out the following item under article 134:

     "With intent to deceive (given in payment of a pre-existing debt)."

     and the punishments listed therefor.

     2. Paragraph 138a is amended by striking out the penultimate paragraph which reads as follows:

     "When it is shown that as a result of his own act a person did not have sufficient funds in the bank available to meet payment upon presentment in due course of a check drawn against the bank by him, it may be presumed that at the time he uttered the check, and thereafter, he did not intend to have sufficient funds in the bank available to meet payment of the check upon its presentment in due course."

     3. Paragraph 143a(2) is amended by adding the following at the end thereof:

     "In the case of a business entry which is that of any business regularly but not necessarily exclusively engaged in public banking activities and which relates to such public banking activities, a duly authenticated (143b (3) ) copy is admissible to the extent that the original would be (see 144c), without first proving that the original has been lost or destroyed and without otherwise accounting for the original. If the banking entry is written or printed in a spoken language, only an exact (true) copy is admissible under this exception to the best evidence rule, although it may consist merely of an extract of those portions material to the case. The copy may be made by photographic or other duplicating process. If the banking entry is a machine or electronic entry, the copy or extract copy may consist of an accurate written 'translation' of such entry, whether made by machine or an 'interpreter'.

     "It may be shown that certain business entries (144c) contain no record or entry of a purported act, transaction, occurrence, or event by the testimony of the person in charge of the business entries in question, by the testimony of his assistant, or by the testimony of any person who has made a search of such business entries and is competent to understand them. Also, in the case of business entries of any business regularly but not necessarily exclusively engaged in public banking activities, it may be shown that certain business entries relating to such banking activities contain no record or entry of a purported act, transaction, occurrence, or event by a duly authenticated (143b (3) ) certificate or statement signed by the person in charge of the business entries in question, or by his assistant, that after diligent search no record or entry of the specified tenor has been found to exist in such business entries. If a purported act, transaction, occurrence, or event is of a kind which in the regular course of business would have been made the subject of an entry in certain business entries of a particular business, proof that these business entries contain no entry concerning such act, transaction, occurrence, or event may be received as evidence that the act, transaction, occurrence, or event did not take place.

     4. Paragraph 143bis amended by adding the following at the end thereof:

     " (3) Authentication of banking entries.-- business entry, or copy thereof, which is that of any business regularly but not necessarily exclusively engaged in public banking activities and which relates to such public banking activities may be authenticated in the same manner as other business entries (see144c) or by a certificate or statement signed under oath before a notary public by the person in charge of the business entry or his assistant, indicating that the writing in question is the original business entry or a true copy thereof (or an accurate 'translation' of a machine or electronic entry), as the case may be, that the entry was made in the regular course of banking business and that it was the regular course of the business to make the entry, and that the signer is the person in charge of the business entry or his assistant, accompanied by a signed statement by the notary of his administration of the oath, under the seal of his office. A certificate or statement by a person in charge of such banking entries, or by his assistant, that after diligent search no record or entry of a specified tenor has been found to exist in such entries (see 143a(2) )may also be authenticated by subscribing the same under oath before a notary public, provided the certificate or statement is accompanied by a signed statement by the notary of his administration of the oath, under the seal of his office."

     5. Paragraph 144c is amended by inserting the following after the second sentence of the second paragraph thereof:

     "Thus, if the holder of a check, draft, or other order for the payment of money upon a bank or other depository, or a person or organization acting on behalf of the holder, presents the instrument through regular banking channels for payment, collection, or deposit and the instrument is returned to the holder or his agent purportedly through regular banking channels with a notation in the form of a stamp, ticket, or other writing either on the instrument itself or accompanying it, purportedly made by the drawee or presenting bank or other depository or clearinghouse, indicating that payment of the instrument has been refused by the drawee because of insufficient funds of the maker or drawer in the drawee's possession or control or for other reasons, proof of the above facts will support an inference of the authenticity of the notation as having been made in the regular course of banking business by a business whose regular course it was to make the notation. The notation, if thus authenticated, is admissible under the business entry exception to the hearsay rule as evidence that payment of the instrument was refused by the drawee for the reasons indicated in the notation, and this is so whether or not a similar notation also made as a memorandum or record was kept in the drawee or presenting bank or other depository or clearinghouse. See also 1431(3) regarding the authentication of banking entries."

     6. Paragraph 155 is amended by inserting the following new item in the synopsis:

     "202a Article 123a________________________________________________

     Making, drawing, uttering, or delivering a check, draft, or order without sufficient funds____________ ________ ____________ ".

     7. Paragraph 200a (5) is amended by striking out the last sentence in the first paragraph thereof and the words "such as giving a check, without intending that it shall be honored, in purported payment of a debt incurred in a past purchase of property and not thereby obtaining any money, personal property, or article of value," in the second paragraph thereof.

     8. Paragraph 202 is amended by inserting the words "See, however, 202a." after the third sentence in the third paragraph thereof.

     9. The following new paragraph 202a is inserted after paragraph 202:

     "202a. ARTICLE 123a—MAKING, DRAWING, OR UTTERING CHECK, DRAFT, OR ORDER WITHOUT SUFFICIENT FUNDS

     "Discussion.--Article 123a denounces certain 'bad check' offenses. It makes punishable by court-martial the making, drawing, uttering, or delivering of any check, draft, or order for the payment of money upon any bank or other depository, either—

     (1) for the procurement of any article or thing of value, with intent to defraud; or

     (2) for the payment of any past due obligation, or for any other purpose, with intent to deceive; knowing at the time of the making, drawing, uttering, or delivering 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.

     "The written instruments covered by this article include any check, draft, or order for the payment of a sum of money drawn upon any bank or other depository, whether or not the drawee bank or depository is actually in existence. The phrase 'bank or other depository' includes any business regularly but not necessarily exclusively engaged in public banking activities. The words 'making' and 'drawing' are synonymous, and refer to the acts of writing and signing the instrument. 'Uttering' and 'delivering' have similar meanings. Both 'uttering' and 'delivering' mean transferring the instrument to another, but 'uttering' has the additional meaning of offering to transfer. A person need not himself be the maker or drawer of an instrument in order to violate this article if he utters or delivers it. For example, if a person holds a check which he knows to be worthless, and utters or delivers the check to another, he may be guilty of an offense under this article despite the fact that he did not draw the check himself.

     "To constitute an offense under this article, the instrument must be made, drawn, uttered, or delivered, with the requisite knowledge of insufficient funds or credit, either for the procurement of an article or thing of value with intent to defraud, or for the payment of any past due obligation or for any other purpose with intent to deceive. 'For the procurement' means for the purpose of obtaining any article or thing of value. It is not necessary that an article or thing of value actually be obtained, and the purpose of the obtaining may be for the accused's own use or benefit or for the use or benefit of another. 'For the payment' means for the purpose or purported purpose of satisfying in whole or in part any past due obligation. It is not requisite that payment be legally effected. 'For any other purpose' includes all purposes other than the payment of a past due obligation or the procurement of any article or thing of value. For example, it includes satisfying or purporting to satisfy an obligation arising from an illegal transaction, such as an illegal gambling game, and paying or purporting to pay an obligation which is not yet past due. The check, draft, or order, whether made or negotiated for the procurement of an article or thing of value or for the payment of a past due obligation or for some other purpose, need not be intended or represented as payable immediately. For example, the making of a post dated check, delivered at the time of entering into an installment purchase contract and intended as payment for a future installment, would, if made with the requisite intent and knowledge, be a violation of this article.

     " 'Article or thing of value' extends to every kind of right or interest in property, or derived from contract, including interest and rights which are intangible or contingent or which mature in the future. A 'past due obligation' is an obligation to pay money which has legally matured prior to the making, drawing, uttering, or delivering of the instrument.

     "The accused must have knowledge, at the time he makes, draws, utters, or delivers the instrument, that the maker or drawer, whether the accused or another, has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of the instrument in full upon its presentment. 'Sufficient funds' refers to a condition in which the account balance of the maker or drawer in the bank or other depository at the time of presentment of the instrument for payment is not less than the face amount of the instrument and has not been rendered unavailable for payment by garnishment, attachment. or other legal procedures.

     " 'Credit' means an arrangement or understanding, express or implied, with the bank or other depository for the payment of the check, draft, or order. An absence of credit includes those situations in which an accused writes a check on a nonexistent bank or on a bank ill which he has no account. 'Upon its presentment' refers to the time the demand for payment is made upon presentation of the instrument to the bank or other depository on which it was drawn.

     "'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. An 'intent to deceive' means an intent to mislead, cheat, or trick another by means of a misrepresentation made to such other for the purpose of gaining an advantage for one's self or for a third person or of bringing about a disadvantage to the interests of the person to whom the representation was made or interests represented by that person. It may be inferred that every check, draft, or order carries with it a representation that the instrument will be paid in full by the bank or other depository upon presentment by a holder when due.

     "It should be noted that, under this article, two times are involved: (1) the time when the accused makes, draws, utters, or delivers the instrument; and (2) the time when the instrument is presented to the bank or other depository for payment. At time (1), the accused must possess the requisite intent and must know that the maker or drawer does not have or will not have sufficient funds in, or credit with, the bank or other depository for payment of the instrument in full upon its presentment when due. With respect to (2), if it can otherwise be shown that the accused possessed the requisite intent and knowledge at the time he made, drew, uttered, or delivered the instrument, neither proof of presentment nor refusal of payment is necessary, as when the instrument is one drawn on a nonexistent bank. The provisions of this article with respect to establishing prima facie evidence of knowledge and intent by proof of notice and nonpayment within five days is a statutory rule of evidence. The failure of an accused who is a maker or drawer to pay the holder the amount due within five days after receiving either oral or written notice from the holder of a check, draft, or order, or from any other person having knowledge that such check, draft, or order was returned unpaid because of insufficient funds, is prima facie evidence (1) that the accused had the intent to defraud or deceive as alleged; and (2) that the accused knew at the time he made, drew, uttered, or delivered the check, draft, or order that he did not have or would not have sufficient funds in, or credit with, the bank or other depository for the payment of such check, draft, or order upon its presentment for payment. Prima facie evidence is that proof which, if unrebutted, is sufficient to establish the accused's intent to defraud or deceive and of his knowledge of insufficient funds in or credit with the bank or other depository.

     "The failure to give the notice referred to in the statute, or payment by the accused, maker, or drawer to the holder of the amount due within five days after such notice has been given, merely precludes the prosecution from availing itself of the statutory rule of evidence. Proof of notice to the accused that a check, draft, or order has been returned unpaid because of insufficient funds is not an element of the offense.

     "Proof.—When the instrument is given for the procurement of an article or thing of value--(a) That the accused made, drew, uttered, or delivered a check, draft, or order payable to a named person or organization, as alleged; (1) that he did such act for the purpose of procuring an article or thing of value; (c) that such act was committed with intent to defraud; and (d) that at the time of making, drawing, uttering, or delivering of the instrument he knew that he or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment.

     "When the instrument is given for the payment of a past due obligation, or for any other purpose—(a) That the accused made, drew' uttered, or delivered a check, draft, or order payable to a named person or organization, as alleged; (b) that he did such act for the purpose or purported purpose of effecting the payment of a past due obligation or for some other purpose, as alleged; (c) that such act was committed with intent to deceive; and (d) that at the time of making, drawing, uttering, or delivering of the instrument, he knew that he or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment.

     "As to permissible methods of proving banking entries, see 143b (3). As to the authentication of checks, drafts, or orders returned with payment refused and the admissibility of such returned instruments, see the second paragraph of 144c."

     10. Paragraph 208 is amended by striking out the word "inclusive" in the first sentence and inserting the words "except Article 123a" in place thereof.

     11. Appendix 6c is amended:

     (a) By inserting the following new Forms for Specifications immediately following Form No. 93:

"ARTICLE 123a

"Check, worthless, with intent to defraud

93.1. In that _____________ did, (at) (on board) _______, on or about ______.___, 19__, with intent to defraud and for the procurement of [lawful currency] (and) [___________ (an article) (a thing) of value], wrongfully and unlawfully [ (make) (draw) ] [ (utter) (deliver) to __________,] a certain (check) (draft) (order) for the payment of money upon the (__________ Bank ) ( ___ _______ depository ) in words and figures as follows, to wit: __________, then knowing that (he) (__________), the (maker)(drawer) thereof, did not or would not have sufficient funds in or credit with such (bank) (depository) for the payment of the said (check)(draft) (order) in full upon its presentment.

"Check, worthless, with intent intent to defraud

93.2. In that __________ did, (at) (on board) to deceive __________, on or about _________, 19__, with intent to deceive and (for the payment of a past due obligation, to wit: _____ _____ ) ( for the purpose of __________ ) wrongfully and unlawfully [ (make) (draw) ] [ (utter) (deliver) to_____________,] a certain (check) (draft) (order) for the payment of money upon (__________ Bank) (__________ depository), in words and figures as follows, to wit: __________, then knowing that (he) ( __________ ), the (maker) (drawer) thereof did not or would not have sufficient funds in or credit with such (bank) (depository) for the payment of the said (cheek) (draft) (order) in full upon its presentment."

     (b) By striking out Form for Specification No. 129 and the note thereto and inserting the following in place thereof:

"Check, worthless, dishonorable failure to place or maintain funds

129. In that __________ did, (at) (on board) _____ ____, on or about _________, 19 _, make and utter to _____________ a certain check, in words and figures as follows, to wit: ________________, ( for the purchase of ________________ )(in payment of a debt) (for the purpose of __________), and did thereafter wrongfully and dishonorably fail to ( place ) ( maintain ) sufficient funds in the __________ Bank for payment of such check in full upon its presentment for payment."

     12. The Table of Commonly Included offenses in Appendix 12 is amended as follows:

     (a) By inserting the following new item:

     "123a Making, drawing, uttering, or delivering a 134 Making, drawing uttering, or delivering a chock, draft, or order without sufficient check, draft, or order, and thereafter with Intent to defraud or with intent to deceive".

     "134 Making, drawing, uttering, or delivering a check, draft, or order, and thereafter wrongfully and dishonorably failing to maintain sufficient funds."

     (b) By striking out the following item:

     "134 Making and uttering a worthless check with intent to deceive and thereafter wrongully and dishonorably failing to maintain a sufficient balance.

     "134 Making and uttering a worthless check and thereafter wrongfully and dishonorably failing to maintain a sufficient balance."

JOHN F. KENNEDY

THE WHITE HOUSE,
March 16, 1962.