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No. 97-575

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 232N

STATE OF MONTANA,

Plaintiff and Respondent, 

v.

STEVEN L. MCNEIL, 

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial 

District,

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In and for the County of Gallatin,

The Honorable William Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John Keith, Great Falls, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana; 

Marty Lambert, Gallatin County Attorney, Bozeman, Montana

Submitted on Briefs: July 29, 1998

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Decided: September 17, 1998

Filed:

_________________________________________ Clerk

Justice William E. Hunt delivered the Opinion of the Court.

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court cause number and 

result to the State Reporter Publishing Company and to West Group in the quarterly 

table of noncitable cases issued by this Court.

¶ This is an appeal by Steven L. McNeil (McNeil) from the judgment of conviction 

entered by the Eighteenth Judicial District Court, Gallatin County, upon a jury 

verdict finding him guilty of issuing a bad check, a felony, in violation of § 45-6-316, 

MCA. McNeil contends that the District Court erred when it denied his motion to 

dismiss, his motion for a directed verdict, and his motion to set aside the verdict. We 

affirm.

¶ In October, 1995, McNeil was convicted of various traffic offenses, and Presiding 

Judge Thomas A. Olson sentenced him to pay $1,287 in court fines within 60 days of 

October 31, 1995. On approximately December 28, 1995, McNeil sent Judge Olson a 

document entitled "Certified Bankers [sic] Check - Comptroller Warrant." The 

document was written for the amount of $2,574 and constitutes the bad check for 

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which McNeil was convicted of writing. The check was made out to both McNeil and 

Judge Olson, and McNeil had endorsed the back of it. The name appearing on the 

signature line of the check was LeRoy M. Schweitzer. It stated in one place that 

Schweitzer was the "accommodation/surety/guarantor," and in another place that 

Schweitzer was the "Drawer/Maker." It also stated that the check was "Redeemable 

at office of PostMaster [sic], Payable on Sight." 

¶ Accompanying that check was another document entitled "Praecipe," which 

instructed Judge Olson to pay the court fines and return the balance to McNeil, who 

was referred to as "the State in Fact," within 72 hours. In that same "Praecipe," 

McNeil claimed that he was the "Sovereign" and that he resided in "Belgrade, 

Montana Republic state, united [sic] States of America" which was "expressly not 

‘within’ the United States." McNeil signed the "Praecipe."

¶ Judge Olson presented the check to Valley Bank of Belgrade, which refused to 

honor it. Similarly, the postal service could not redeem the check because it was not a 

postal document or federal money order, because it was a two-party check, and 

because a December 7, 1995 postal bulletin called a "fraud alert," instructed postal 

employees not to cash such checks. 

¶ On February 8, 1996, the prosecution filed an information charging McNeil with 

issuing a bad check, a felony, in violation of § 45-6-316, MCA. The affidavit filed in 

support of the information detailed the State’s case against McNeil and includes a 

copy of the check McNeil mailed to Judge Olson, a copy of the "Praecipe," and a 

copy of the "fraud alert" issued by the postal service. The alert warns postal service 

employees not to accept checks for payment that are similar to the one at issue in this 

case. The sample check attached to the alert similarly contain the statement 

"Redeemable at office of PostMaster [sic], Payable on Sight," and is signed by LeRoy 

M. Schweitzer. 

¶ McNeil was convicted of violating § 45-6-316, MCA, which provides:

Issuing a bad check. (1) A person commits the offense of issuing a bad check 

when the person issues or delivers a check or other order upon a real or 

fictitious depository for the payment of money knowing that it will not be 

paid by the depository.

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. . . . 

(3) A person convicted of issuing a bad check shall be fined not to exceed 

$500 or be imprisoned in the county jail for any term not to exceed 6 months, 

or both. If the offender has engaged in issuing bad checks that are part of a 

common scheme or if the value of any property, labor, or services obtained or 

attempted to be obtained exceeds $500, the offender shall be fined not to 

exceed $50,000 or be imprisoned in the state prison for any term not to exceed 

10 years, or both. 

¶ On appeal, McNeil argues that the state failed to prove the elements necessary to 

convict him of violating § 45-6-316, MCA. Specifically, he contends that the court 

erred in denying his motions to dismiss, for a directed verdict, and to set aside the 

verdict, because the information charging him with issuing a bad check was 

insufficient. He additionally contends that no evidence supported the jury’s verdict 

that the document he sent to Judge Olson was a check or order drawn on a bank; 

that he received "property, labor or services" by issuing the check, or that he knew 

the check would not be paid. Because many of his arguments with regard to the 

sufficiency of the information and the sufficiency of the evidence at trial overlap, we 

consider both at the same time.

A. Check or Other Order

¶ The Uniform Commercial Code (U.C.C.) defines a "negotiable instrument" as 

follows:

(1) "Negotiable instrument" means an unconditional promise or order to pay a 

fixed amount of money, with or without interest or other charges described in 

the promise or order, if it:

(a) is payable to bearer or to order at the time it is issued or first comes into 

possession of a holder;

(b) is payable on demand or at a definite time; and

(c) does not state any other undertaking or instruction by the person promising 

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or ordering payment to do any act in addition to the payment of money except 

that the promise or order may contain [other undertakings, authorizations, or 

waivers not relevant to this case].

Section 30-3-104(1), MCA. A "check" means "a draft, other than a documentary draft, 

payable on demand and drawn on a bank[.]" Section 30-3-104(6), MCA. An "order" is 

also considered to be a negotiable instrument and a check if it otherwise falls within the 

definition of a "check" and if it meets all the requirements of a "negotiable instrument" 

except those falling within subsection 1(a). Section 30-3-104(3), MCA. 

¶ McNeil contends that the document he mailed to Judge Olson does not constitute a 

"check" or "other order" within the meaning of § 45-6-316 and § 30-3-104, MCA, 

for three reasons. First, he argues that the document was not "drawn on a bank" as 

required by the definition of "check" in § 30-3-104(6), MCA. He provides no analysis 

or legal authority for his position, but merely states that the "document in this 

matter is clearly not drawn upon a bank." His position lacks merit.

¶ A "bank" means "any person engaged in the business of banking. . . ." Section 30-

4-105(1), MCA. The bank upon which the check is drawn and by which it is payable 

is the "payor bank." Section 30-4-105(3), MCA. The first bank to which a check is 

submitted for collection is the "depository bank" regardless of whether it is also the 

payor bank. Section 30-4-105(2), MCA.

¶ In this case, the instrument identifies the depository bank as "Treasurer united 

[sic] States of America" and "PostMaster [sic]." It further states that the check is 

redeemable at the "office of PostMaster [sic]" and is "Payable on Sight." Thus, 

"Treasurer united [sic] States of America, office of PostMaster [sic]" is both the 

payor bank and the depository bank. The fact that the entity identified as the payor 

bank or the depository bank is fictitious or has no authority to make the payment 

does not exculpate McNeil. The very statute for which McNeil was convicted of 

violating provides that a person commits the offense of issuing a bad check if the 

check is delivered "upon a real or fictitious depository." Section 45-6-316(1), MCA. 

Here, the "Treasurer united [sic] States of America, office of PostMaster [sic]" is a 

fictitious depository.

¶ Second, McNeil contends that the instrument is not a "check" or "order" because 

it is not an order to pay. He points to the definition of "order" set forth at § 30-3-102

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(f), MCA, which provides in part that "[a]n authorization to pay is not an order 

unless the person authorized to pay is also instructed to pay." He maintains that the 

check he sent to Judge Olson merely authorizes payment but that "no language on 

the document . . . can be construed as an order to pay." We disagree. 

¶ The check contains an unconditional promise or order to pay $2,574. It specifically 

says "pay to" the bearer, which in this case was Judge Olson. The words "pay to" is 

an order or instruction, not merely an authorization, to the depository bank to pay 

$2,574. Additionally, the check instructs that the amount is to be paid "on Sight." 

Finally, although the front of the check identifies Judge Olson and McNeil as copayees, McNeil endorsed the back of the check, ordering Judge Olson to be paid. We 

thus conclude that the check contains an order or instruction to pay Judge Olson.

¶ McNeil next contends that the document was signed by LeRoy M. Schweitzer as an 

accommodation party. He cites § 30-3-415, MCA, and argues that Schweitzer was not 

a direct beneficiary of the check. He concludes that the obligation to pay the 

instrument rests with Schweitzer, not a bank or depository, and that therefore the 

document does not constitute a check. Again, we disagree.

¶ The fact that Schweitzer is identified on the check as an accommodation party is 

immaterial. Pursuant to § 30-3-415, MCA, an accommodation party may also sign 

the instrument as a maker or drawer, which is precisely what the check purports to 

do in this case. Indeed, the check itself states that Schweitzer is the "Drawer/Maker." 

However, the check also identifies the depository to be "Treasurer united [sic] States 

of America; Redeemable at office of PostMaster [sic]," and states that it is "Payable 

on Sight." McNeil cites no authority and provides no analysis that supports his 

contention that the payor bank or depository bank is discharged from the obligation 

of paying the check merely because an accommodation party has signed the check. 

We conclude that the document constitutes a "check or other order" within the 

meaning of § 45-6-316, MCA.

B. Drawn Upon a Real or Fictitious Depository

¶ McNeil next argues that the information is insufficient to charge an offense, 

because the check was not drawn upon a "real or fictitious depository" as provided 

for in § 45-6-316, MCA. He contends that the relevant question before this Court is 

"whether the instrument was drawn ‘upon’ the depository." He argues that it was 

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not, because the check expressly states it is an accommodation document. Again, 

McNeil’s position lacks merit.

¶ The face of McNeil’s check states that it is a "Certified Bankers [sic] Check." As 

we have previously elaborated, regardless of the fact that Schweitzer is identified as 

being the "accommodation/surety/guarantor" and "Drawer/Maker," the check also 

identifies the payor bank or depository bank to be "Treasurer united [sic] States of 

America, Redeemable at office of PostMaster [sic]" and further states that the check 

is "Payable on Sight." It matters not that the drawer bank is not real. Section 45-6-

316, MCA, specifically makes it a crime to draw a check upon a "fictitious 

depository."

C. Property, Labor or Services 

¶ McNeil also maintains that the information is insufficient to charge him with a 

felony because there was no probable cause for finding that he gave the check in 

exchange for "property, labor, or services" whose value exceeded $500, as provided 

for in § 45-6-316(3), MCA. He also argues that at trial, the prosecution produced no 

evidence upon which the jury could find that he received "property, labor or 

services" as required by the statute. 

¶ McNeil misconstrues the statute. A person commits a felony "if the value of any 

property, labor, or services obtained or attempted to be obtained exceeds $500. . . ." 

Section 45-6-316(3), MCA (emphasis added). There is no requirement that he 

actually receive the property. In this case, McNeil attempted to obtain the cash value 

of $1,287 to satisfy a debt for traffic violations, and the balance of $1,287 in cash 

from Judge Olson, for a total of $2,574. This obviously constitutes property in excess 

of $500.

D. Knowing that the Check or Order Will Not Be Paid by the Depository

¶ Lastly, McNeil argues that the allegations in the information are insufficient to 

establish a finding that McNeil knew the check would not be paid. He also argues 

that at trial the prosecution presented no evidence from which the jury could infer 

that he knew the instrument would not be paid. Again, we reject his contention.

¶ Section 45-6-316(1), MCA, does not require the prosecution to prove that McNeil 

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had actual knowledge that the check would not be paid by the depository. According 

to the definition of "knowing" provided for in § 45-2-101 (34), MCA, the prosecution 

only had to prove that McNeil was "aware that it [was] highly probable" that the 

depository would not pay the check. See also State v. McHugh (1985), 215 Mont. 296, 

303, 697 P.2d 466, 471. 

¶ In this case, the face of the check itself as well as the "Praecipe" constitute 

sufficient evidence by which a rational jury could find that McNeil knew or was 

aware that it was highly probable that his check would not be paid by the "Treasurer 

united [sic] States of America" or the "PostMaster [sic]." First, the check is entitled 

"Certified Bankers [sic] Check - Comptroller Warrant," but the check fails to 

identify either a specific bank or a comptroller. Doug Tillet, President of Valley Bank 

of Belgrade, testified that no bank could be used as the payor bank. Tillet also 

testified that there is no such thing as a certified banker’s check. Because no bank or 

comptroller is identified as the depository bank, and because there is no such thing as 

a certified banker’s check, a rational jury could conclude that the check falsely 

identifies the federal treasurer as being an entity engaged in the business of 

maintaining financial accounts for citizens for payment on demand. A rational jury 

could conclude that McNeil was highly aware that the federal treasurer did not 

actually engage in such a business. 

¶ The check also contains an account number and a lien number, falsely indicating 

that the postal service keeps accounts for individuals or that a lien could be a direct 

source of funding. Additionally, a postal service employee testified that the post office 

does not accept two-party checks. Any one of these factors would raise suspicions in a 

reasonable person. Again, this constitutes evidence by which a rational jury could 

conclude that McNeil was highly aware that the postal service would not honor the 

check. 

¶ Finally, the face of the check alone contains irregular capitalizations, such as in 

"united" and "PostMaster," and "Bankers" is missing an apostrophe. Again, these 

factors would raise suspicions in a reasonable person and constitute evidence by 

which the jury could reasonably find that McNeil was highly aware that the check 

would not be paid. 

¶ In addition to the check itself, the "Praecipe," which was delivered to Judge Olson 

with the check, evidences McNeil’s knowledge. The "Praecipe" distinguishes between 

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various governmental entities: the "United States," which McNeil claims that he and 

the town of Belgrade, Montana are not "within," and the "Montana Republic state 

[sic]," "country of Montana," and "united [sic] States of America," where McNeil is 

the "Sovereign" or the "State in Fact." This constitutes evidence that McNeil 

fabricated various entities, and a jury could rationally find that McNeil also knew his 

fabricated "Treasurer" and "PostMaster" would not honor his check. 

¶ In sum, contrary to McNeil’s assertion, the information, which is accompanied by 

an affidavit, a copy of the check, the "Praecipe," and the postal service fraud alert, 

states probable cause to believe that an offense was committed. It thus meets the 

requirements of § 46-11-201(2), MCA. We hold that the information was sufficient to 

charge McNeil with violating § 45-6-316, MCA.

¶ We also conclude that a rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. We hold that there was sufficient 

evidence to support the jury’s verdict.

¶ Affirmed.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

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