In Commonwealth v. Bonilla, the Massachusetts Appeals Court overturned a conviction of uttering a false instrument, holding that, where a defendant deposits checks into several new bank accounts, knowing that the checks are bad because there is no money in the account tied to those checks, the defendant commits a larceny when he subsequently withdraws money from the deposit accounts, but does not necessarily commit the crime of uttering a false instrument.

The case involved a defendant depositing six checks into six different checking accounts, knowing that there was no money backing up those checks, either because they were drawn on a closed account, or because they were drawn on a new account with no money in it.  The next day, the defendant withdrew $200.00 from three of the six new accounts, as there was a $200.00 maximum withdrawal limit for each new account until the original deposit checks cleared.

The bank later learned that all six of the checks had been dishonored and were being returned to the bank.  The defendant apparently made no attempt to pay the bank back, and was ultimately charged with larceny over $250 by a single scheme, and uttering a false instrument.

The Appeals Court, in holding that the defendant had not uttered a false instrument, first set out the requisite elements of the crime, viz.:

“In order to support a conviction for uttering [a false instrument], the Commonwealth must show that the defendant: (1) offered as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.”

Applying the law, the Court noted that the checks themselves were genuine, as was the defendant’s signature thereon.  The defendant therefore had not uttered any false instruments – although he had in fact committed the felony larceny charge of which he was also convicted in the trial court, by making the $200.00 withdrawals.

The Appeals Court also cited a United States Supreme Court case, Williams v. United States, for the proposition that “writing a check with knowledge that there are insufficient funds to cover it cannot

support a conviction for making false statements to a financial institution, as a check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false.'”  That proposition is in line with the Uniform Commercial Code’s definition of a check as a “promise” or “order,” neither of which is a factual assertion.

So, writing a bad check intentionally does not support a charge of uttering a false instrument, if the check is a genuine, unaltered check, and if the signature made thereon is also genuine, although it may support other serious charges.

Attorney Kevin D. Quinlan

Uxbridge, Worcester County, Massachusetts



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