I’m troubled by news reports that Antoine Walker was arrested for writing $1,000,000 in bad checks. The ex N.B.A. star — Employee Number 8 — was forced to do a perp walk as he apparently was led out of Harrah’s Tahoe in handcuffs. The criminal complaint alleges that from July 27 to January 19, he wrote 10 separate $100,000 checks with insufficient funds to Caesars Palace, Planet Hollywood, and Red Rock Resort.
Writing a check that you never intend to pay is a crime — and appropriately so. But it is crucial that prosecutions be limited to circumstances where there is proof beyond reasonable doubt that the writer at the time of writing never intended to pay. In the beautiful legal language of the New York Bad Check law: “[t]he prosecution must be able to plead and prove an intent by a defendant to utter a worthless check at the time it is uttered, not by the mere happenstance of subsequent insufficient funds.”
When you write a check, you utter — that is represent — that there are sufficient funds in the account and that you intend to have your bank pay the written amount.
It’s difficult but not impossible for the prosecution to present evidence of this bad intent. If a defendant writes checks on a bank account she knows has been closed, or if she writes checks far beyond her means of ever repaying, there can be a strong inference that she never intended to pay.
But Nevada has followed the worrisome trend of presuming an intent to defraud merely from the fact of insufficient funds. Amazingly, the Nevada Bad Check law declares:
The maker of a bad check is presumed to have intent to defraud if the check is drawn on an account which does not exist, if he failed to pay the holder of the bad check the full amount due plus any handling charges within five days after receiving notice that the check is dishonored, or if the notice of refusal of payment sent to the maker by registered or certified mail at an address printed or written on the check is returned because of non delivery. (NRS 205.132.)
Under this provision, if you bounce a check and don’t make it good within five days, you are presumed to have intended to defraud the payee and can be subject to criminal punishment. This presumption is unconscionably broad. If you mistakenly thought that you had enough money in your account and then find that you do not, you can go to jail. I’ve bounced checks by mistake in the past, and this presumption scares the bejabbers out of me.
To add insult to injury, Walker, besides paying off the original debt, “now owes the District Attorney’s office $82,550 in fees for taking on the criminal prosecution, which the three casinos requested.” There is an irony here. The defrauding presumption relieves the prosecutor of any real difficulty in making a case, but nonetheless the prosecutor claims a bounty that quickly turns prosecution into a profit center.
I should disclose that I’m somewhat obsessed with the law of misrepresented intention. Greg Klass and I in fact wrote an entire book about it, called Insincere Promises, which includes a chapter on the crime of false promise and the over-broad bad check presumptions. The book’s cover photograph of crossed fingers behind the back symbolically captures what should be the crucial element of the prosecution’s case — the moment the defendant promises something that he or she intends not to do.
The prosecution of bad checks when the payee is a casino is particularly troubling. Six of the checks were made out to Caesars Palace. Was Caesars really defrauded when the 4th or 5th came back showing insufficient funds? In a world with debit cards, is it really necessary to accept checks?
It would be one thing to go after Walker for writing bad checks to a grocery store or a dry cleaner. But do we really need to use the state to help collect casinos’ bad debts?
We might do better to prohibit casinos from accepting checks as payments — or at least prohibiting them from trying to collect on them if they show insufficient funds. If casinos couldn’t collect on bounced checks, I imagine that casinos would stop accepting as many checks as a method of payment. But this might be a good thing. Taking the gambling profession out of the business of lending money to gamblers might mitigate some of the tragedy of problem gambling.
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“It would be one thing to go after Walker for writing bad checks to a grocery store or a dry cleaner. But do we really need to use the state to help collect casinos’ bad debts?”
What is the difference, in your mind, between one business and another. Where would you draw the line between businesses that deserve protection under the law, and those that don’t?
These casinos allowed Antoine to write 10 bad $100,000 over 6 months? One bad check – shame on you, Antoine, but two or more bad checks totaling $1,000,000 sounds more like racketeering on the part of the casinos. For Walker to get arrested on this demonstrates gambling’s control over Nevada.
Anybody who thinks a casino is going to do anything to stop a patron from spending money — whether in the form of cash, check, credit card, jewelry, or other — is just a fool or hasn’t visited a casino in several decades. If the State decides to stop enforcing the law for casinos, the casinos will just find their own way to collect the outstanding debts. Bet on it!
Guy writes bad checks to a casino (presumably gambling related), and gets exploited by the DA, the casinos, and the banks.
Not many white hats in this story.
“Under this provision, if you bounce a check and don’t make it good within five days, you are presumed to have intended to defraud the payee and can be subject to criminal punishment. This presumption is unconscionably broad. If you mistakenly thought that you had enough money in your account and then find that you do not, you can go to jail. I’ve bounced checks by mistake in the past, and this presumption scares the bejabbers out of me. ”
No, it is conscionably broad. You get five days after receiving notice that your check was bad to pay up and avoid prosecution.
You must scare easily.
I have a problem with the DA collecting (anything). If it’s a criminal case, you go to jail or pay restitution or whatever. If it’s not, if it’s just collection action, then it’s a civil action… although the mention of owing the DA $82k is a bit generalized and may well be a fine or restitution.
I don’t like that you are automatically committing fraud by writing a bad check (I bet over half of people have done it once – I certainly have, accidentally grabbing a checkbook for an account I use rarely and has little money in it!), but Walker clearly was committing fraud, in my mind – repeatedly writing checks he had nothing near the money to cover. I’d expect he would be found guilty in New York as easily as in Nevada; and I think the casino element is irrelevant [though yes, they're idiots to take multiple checks, even from a famous personality like Antoine].
How to work this out though, is an interesting question. What’s the right burden of proof? It’s fairly steep to prove that the person had no intent of paying, though perhaps reasonable, and clearly simply bouncing the check is too low. Perhaps something on the order of “Knowingly writing a check more than (x amount), that is greater than (y amount, which is somehow derived from the person’s recent cash on hand)”?
Or, “Knowingly writing a single check that is not honored by the bank, in an amount that the writer knew would exceed the total amount on deposit in the account at the time it was written, and did not have a clear source of income to deposit into said account”? I wouldn’t mind putting some burden of proof on the defendant to show that he/she had planned on depositing (x), but screwed up the timing of a deposit (say, a deposit for a house sale, that was supposed to go through the same day as the house they were buying, but ended up falling through despite reason to believe it would go through, or that check bouncing, etc.) or similar.
Either way, I think the law should reflect that it is only fradulent if you should have known that there was no way the check would clear – not just because you misbalanced your checkbook or missed the timing on something.
This is an incrdible story! People still write checks?!?
It seems perfectly reasonable to me to expect payment on a bad check within five days of notice being received by the check bouncer. It certainly appears to satisfy the issue of intent.
And I suspect most honest people would think so too. But then, they’re the type of folks who rarely bounce checks and expeditiously make good on them when they do.