Government hits the jackpot in Falcon

One of the most famous movie lines of all time is Captain Renault's protestation that "I'm shocked, shocked to find that gambling is going on in here!" That line, of course, is immediately followed by the croupier handing Captain Renault his winnings.

In United States v. Falcon, __ M.J. ___, No. 07-010/NA (C.A.A.F. Jan. 9, 2008), CAAF announced that it will no longer pretend to be shocked that many overseas military clubs feature slot machines.

Falcon is a unanimous opinion, with Judge Erdmann writing for the court.

Postal Clerk Seaman Falcon pled guilty to making and uttering 49 checks worth $4,3000 without sufficient funds in violation of Article 123a. (Like virtually any other postal clerk seaman who lands before a special court-martial, he also pled guilty to two specs of opening and stealing mail, but that's not at issue in the appeal.)

Falcon argued that the finding of guilty to the bad check offenses was improvident under the gambler's defense because he took the proceeds from the bad checks written to two enlisted clubs on Okinawa and pumped them right back into slot machines at the clubs.

CAAF first ruled that the gambler's defense applied only to Article 134 dishonorable failure to maintain sufficient funds bad check offenses but not to Article 123a bad check offenses, which include an intent to defraud element. But then, much more importantly, CAAF eliminates the gambler's defense for any bad check offense committed to obtain money for legal gambling. CAAF leaves open the possibility that the gambler's defense might still apply where a bad check is written to finance illegal gambling activity.

In the course of reaching this result, CAAF overturned its own decision in United States v. Wallace, 15 C.M.A. 650, 36 C.M.R. 148 (1966). Wallace had held that courts-martial would not promote gambling by holding a servicemember criminally liable for an Article 134 bad check offense committed to obtain the funds with which to gamble. Even though Wallace dealt with apparently legal slot machine gambling in overseas military clubs, CMA held: "Whether 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.

CAAF's response in Falcon was: how quaint [not a direct quote].

CAAF noted that in "the forty-one years since Wallace, our society has seen legal gambling grow both in acceptance and popularity. Governments at all levels sanction and often tax a broad scope of gambling activities." Falcon, slip op. at 10-11. CAAF concludes that "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." Id., slip op. at 11.

The opinion also discussed stare decisis before concluding that given Wallace's policy basis, it was appropriate to overturn it.

Finally, CAAF rejected an argument that the military judge had erroneously failed to inquiry into a potential defense when the case in E&M included evidence that Seaman Falcon was addicted to gambling and had been diagnosed as a pathological gambler.

Okay, who lost money on Falcon's outcome?