UNITED STATES, Appellee 

v. 

Esteban FALCON, Postal Clerk Seaman 

U.S. Navy, Appellant 

No. 07-0105 

Crim. App. No. 200401483 

United States Court of Appeals for the Armed Forces 

Argued October 15, 2007 

Decided January 9, 2008 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined. 

Counsel 

For Appellant: Major Richard D. Belliss, USMC (argued); 

Lieutenant Brian L. Mizer, JAGC, USN. 

For Appellee: Lieutenant David H. Lee, JAGC, USN (argued); 

Major Brian K. Keller, USMC (on brief); Commander Paul C. 

LeBlanc, JAGC, USN, and Lieutenant Jessica M. Hudson, JAGC, USN. 

Military Judge: John G. Baker 

This opinion is subject to revision before final publication. 
United States v. Falcon, No. 07-0105/NA 

2

Judge ERDMANN delivered the opinion of the court. 

Postal Clerk Seaman Esteban Falcon entered guilty pleas and 

was convicted of two specifications of opening and stealing 

mail, in violation of Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2000), and three specifications 

of making and uttering checks without sufficient funds, in 

violation of Article 123a, UCMJ, 10 U.S.C. § 923a (2000). On 

appeal to the United States Navy-Marine Corps Court of Criminal 

Appeals, Falcon argued that the military judge erred in 

accepting his guilty pleas to the bad check offenses without 

first informing him of the availability of the “gambler’s 

defense” that was recognized in United States v. Wallace, 15 

C.M.A. 650, 653, 36 C.M.R. 148, 151 (1966). The Court of 

Criminal Appeals found that the defense was not applicable to 

the Article 123a, UCMJ, offenses and that the pleas were 

provident. United States v. Falcon, 65 M.J. 582, 584-85 (N-M. 

Ct. Crim. App. 2006). Before this court Falcon again argues 

that his pleas were not provident to the bad check charges 

because of the gambler’s defense. We agree with the conclusion 

of the Court of Criminal Appeals and take this opportunity to 

review the continuing validity of the Wallace decision. We find 

that the rationale supporting the gambler’s defense is no longer 

valid and therefore overrule Wallace. 
United States v. Falcon, No. 07-0105/NA 

3

Falcon also asserts that during the providence inquiry the 

military judge should have inquired into the possibility of a 

partial mental responsibility defense because of statements made 

during the trial relating to Falcon’s gambling addiction and his 

diagnosis as pathological gambler. We hold that the military 

judge did not abuse his discretion when he did not advise Falcon 

of the possibility of a partial mental responsibility defense. 

Background

Over the course of four months, Falcon wrote forty-nine 

checks totaling $4300.00 at two enlisted clubs.1

 Falcon 

testified that he would cash his checks at the clubs’ cash cages 

and immediately take the money and use it in the slot machines 

located near the cash cages. Falcon stipulated that he knew 

that he did not have enough money in his checking account to 

cover the checks and that his conduct was wrongful and unlawful. 

At the plea inquiry, Falcon stated he never represented to 

the cashiers that he did not have enough money in the account to 

cover the checks and his actions were designed to mislead the 

staff into thinking each check was valid. Additionally, Falcon 

 

1

 Falcon was found guilty of three specifications of making and 

uttering checks without sufficient funds. The Court of Criminal 

Appeals’ factual summary reflects that he wrote forty-three 

checks for a total of $3100.00. See United States v. Falcon, 65 

M.J. 582, 583 (N-M. Ct. Crim. App. 2006). However, those 

figures do not include the checks in the third specification. 

The correct figures are forty-nine checks for a total of 

$4300.00. 
United States v. Falcon, No. 07-0105/NA 

4

stipulated that the clubs did not actively facilitate or 

otherwise have any knowledge of any gambling that Falcon might 

have engaged in after they cashed the checks. Falcon testified 

he intended to defraud the two clubs through his check-writing 

practices. 

 During the sentencing portion of the trial, Falcon 

testified that he had a gambling addiction and described his 

gambling practices. The Government called Staff Sergeant (SSgt) 

Daniel Poole during sentencing, who was the head of the 

Pathological Gambling Counseling Services program at the base 

hospital. Poole testified that Falcon had been diagnosed as a 

“pathological gambler” by a doctor at the Naval Hospital and 

that Poole had performed an initial evaluation on Falcon and had 

recommended counseling. 

Discussion

Applicability of the Gambler’s Defense to Article 123a, UCMJ

In Wallace, the defendant was convicted under Article 134, 

UCMJ, with making worthless checks by dishonorably failing to 

maintain sufficient funds in his account. Id. at 650, 36 C.M.R. 

at 148. Wallace held that under the circumstances of that case, 

the failure to maintain sufficient funds was not “dishonorable” 

and could not be the basis of a criminal prosecution. Id. at 

653, 36 C.M.R. at 151. In addition, Wallace concluded that 

courts should not lend their offices to the enforcement of 
United States v. Falcon, No. 07-0105/NA 

5

gaming transactions that were against public policy. Id. at 

653, 36 C.M.R. at 151. This aspect of Wallace has come to be 

known as the gambler’s defense. 

Falcon was charged with making worthless checks without 

sufficient funds under Article 123a, UCMJ. He contends the 

Wallace gambler’s defense should apply to Article 123a, UCMJ, 

offenses as well as Article 134, UCMJ, offenses because there is 

no substantive difference between the two offenses. He argues 

that the policy considerations behind the defense should apply 

for all worthless check offenses where, as here, the checks were 

written to a military-operated club for cash that was spent in 

the club’s nearby gambling facilities and where the worthless 

checks were accepted with the club’s implicit awareness and 

encouragement. 

The Government responds that the two offenses contain 

different elements and that an Article 134, UCMJ, offense occurs 

after the check is written when the servicemember fails to keep 

money in his or her account, as opposed to an Article 123a, 

UCMJ, offense where the actus reus is complete when the check is 

written. Due to the differences in the two statutes, the 

Government argues that the gambler’s defense does not apply to 

Article 123a, UCMJ, offenses. 

The service courts are divided as to whether the Wallace

gambler’s defense applies to Article 123a, UCMJ, offenses. The 
United States v. Falcon, No. 07-0105/NA 

6

Army Court of Criminal Appeals extended Wallace to Article 123a, 

UCMJ, offenses but did so without analysis, simply assuming that 

the gambler’s defense was applicable. See United States v. 

Greenlee, 47 M.J. 613 (A. Ct. Crim. App. 1997); United States v. 

Thompson, 47 M.J. 611 (A. Ct. Crim. App. 1997); United States v. 

Green, 44 M.J. 828 (A. Ct. Crim. App. 1996). The Air Force 

Court of Criminal Appeals held that the Wallace gambler’s 

defense was not applicable to Article 123a, UCMJ, offenses based 

on the structural differences in the statutes and the different 

“intent” elements. United States v. Ewing, 50 M.J. 622, 627-28 

(A.F. Ct. Crim. App. 1998). The Navy-Marine Corps Court of 

Criminal Appeals, in the decision below, followed the Air Force 

court’s approach. Falcon, 65 M.J. at 584. 

A worthless check offense under Article 134, UCMJ, requires 

that the accused “dishonorably fail[ed] to maintain funds” after 

the check was made and uttered. Manual for Courts-Martial, 

United States pt. IV, para. 68 (2005 ed.) (MCM). In contrast, 

the elements of Article 123a, UCMJ, include knowledge by the 

accused that the accused did not have sufficient funds at the 

time of writing the check and “that the act was committed with 

the intent to defraud.” MCM pt. IV, para. 49.b.(1). The 

Article 134, UCMJ, offense does not require an intent to defraud 

or knowledge by the accused that he has insufficient funds to 

cover the check. In fact, Article 134, UCMJ, can be satisfied 
United States v. Falcon, No. 07-0105/NA 

7

with bad faith or gross indifference, which is a lesser mens rea 

than the specific intent to defraud required in Article 123a, 

UCMJ. See MCM pt. IV, para. 68.c. We therefore reject Falcon’s 

argument that the elements of these two offenses are without 

difference. 

In Wallace, the court concluded that issuing worthless 

checks to a service club, which accepted the checks for a 

gambling transaction knowing they were worthless, was not 

“dishonorable” conduct under Article 134, UCMJ. 15 C.M.A. at 

653, 36 C.M.R. at 151. While the actions of the service club 

impacted the “dishonorable” determination in Wallace, the 

actions of the payee have no impact where an offense requires 

the payor to act with a specific intent to defraud, as does 

Article 123a, UCMJ. An Article 123a, UCMJ, offense, unlike an 

Article 134, UCMJ, offense, is complete once the check is 

proffered and before the club acts or the accused uses the money 

for gambling, which further distinguishes the gambler’s defense 

and Article 123a, UCMJ. See United States v. Margelony, 14 

C.M.A. 55, 59, 33 C.M.R. 267, 271 (1963). 

Based on these differences in the two statutes, we conclude 

that the gambler’s defense does not extend to Article 123a, 
United States v. Falcon, No. 07-0105/NA 

8

UCMJ, and that the military judge did not err in accepting 

Falcon’s guilty pleas without informing him of the defense.2

Revisiting Wallace

We now turn to the background and underpinnings of the 

gambler’s defense. In 1957, this court addressed a conviction 

where the accused wrote worthless checks to co-participants in 

an illegal gambling game, so that he could continue gambling. 

United States v. Walter, 8 C.M.A. 50, 23 C.M.R. 274 (1957). The 

court held that a conviction for larceny under those 

circumstances could not be upheld because the actions in which 

the participants were engaged were against public policy. Id.

at 53-54, 23 C.M.R. at 277-78. A year later, the court held 

that a worthless check used to buy poker chips was “neither 

legally nor morally” valid and that the accused’s refusal to 

make good on a gambling debt was not “dishonorable.” United 

States v. Lenton, 8 C.M.A. 690, 693-94, 25 C.M.R. 194, 197-98 

(1958). Both of these decisions were based on public policy 

considerations and dealt with gambling that was illegal. 

Lenton, 8 C.M.A. at 693-94, 25 C.M.R. at 197-98; Walter, 8 

C.M.A. at 53-54, 23 C.M.R. at 277-78. 

 

2

 Even if the gambler’s defense had been available to Falcon 

under Article 123a, UCMJ, the facts in this record would not 

support its application. Falcon admitted that the clubs had no 

knowledge of his gambling practices or that the checks were 

worthless. 
United States v. Falcon, No. 07-0105/NA 

9

We next addressed the criminal liability of servicemembers 

who wrote worthless checks to participate in gambling conducted 

lawfully on a military installation. Wallace, 15 C.M.A. at 650, 

36 C.M.R. at 148. Wallace was convicted under Article 134, 

UCMJ, of dishonorably failing to maintain funds to support 

checks he wrote to an officers’ club located in Germany. Id. at 

650, 36 C.M.R. at 148. Wallace wrote these checks to the club 

in exchange for quarters he used to play the slot machines in 

the same club. Id. at 651, 36 C.M.R. at 149. 

Wallace wrote checks of increasing value to cover the 

returned checks. Id. at 651, 36 C.M.R. at 149. Although he had 

no formal agreement with the club about his worthless checks, 

the Board of Governors of the club (of which he was a member) 

was aware of Wallace’s practice. Because the Board was 

confident he would eventually pay these debts, it allowed the 

practice to continue. Id. at 651, 36 C.M.R. at 149. As in 

Walter and Lenton, the court’s decision was based on public 

policy considerations. The court stated that the legality of 

slot machines in American military establishments overseas was 

an issue that they need not decide because “[w]hether 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. 
United States v. Falcon, No. 07-0105/NA 

10

In reversing Wallace’s conviction, the court stated that 

the “issuance of a worthless check in a gambling game or as a 

means of facilitating a gaming transaction [could not] be made 

the basis of a criminal prosecution.” Id. at 653, 36 C.M.R. at 

151. The court also concluded that Wallace’s actions were not 

dishonorable under Article 134, UCMJ, because the club 

facilitated his bad-check writing practice by knowingly cashing 

them. Id. at 653, 36 C.M.R. at 151. 

Almost thirty years after Wallace, the Air Force Court of 

Criminal Appeals rejected the rationale of Wallace in United 

States v. Allbery, 41 M.J. 501, 502 (A.F. Ct. Crim. App. 1994). 

The Air Force court found that legal gambling was not against 

public policy and therefore “it no longer makes sense to follow 

Wallace.” Id. On appeal, this court was unanimous in holding 

that the lower court did not have the discretion to depart from 

our precedents, although only a plurality found that public 

policy as to gambling had not changed since Wallace. United 

States v. Allbery, 44 M.J. 226, 227-31 (C.A.A.F. 1996). 

The public policy rationale of Walter and Lenton was based 

on the illegality of gambling. Wallace extended the public 

policy basis for not criminalizing gambling debts to both 

illegal and legal gambling. In the fifty years since Walter and 

the forty-one years since Wallace, our society has seen legal 

gambling grow both in acceptance and popularity. Governments at 
United States v. Falcon, No. 07-0105/NA 

11

all levels sanction and often tax a broad scope of gambling 

activities.3 Public policy relating to gambling is primarily a 

legislative function, and therefore, courts look to legislative 

enactments for determinations of public policy. Cf. Building 

Serv. Employees Int’l Union, Local 262 v. Gazzam, 339 U.S. 532, 

537-38 (1950) (finding legislative action on the organization of 

laborers for bargaining purposes to be the state’s public 

policy). There can be little dispute that public policy on 

legal gambling has changed over the past fifty years. In this 

environment, 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. 

Debts and offenses that result from legal gambling should 

not be treated differently than those that occur from other 

legal conduct. When a servicemember writes a check to 

participate in legal gambling, he or she should not be able to 

 

3

 In fiscal year 2005 over $50 billion were spent on state 

sponsored lotteries in the United States producing over $15 

billion in revenue for the states. Alicia Hansen, Tax 

Foundation, Gambling with Tax Policy: States’ Growing Reliance 

on Lottery Tax Revenue 1 (2007), available at http://www.tax 

foundation.org/files/bp54.pdf. In 2005 commercial casinos in 

the United States took in over $30 billion and paid almost $5 

billion in direct gaming taxes. American Gaming Association, 

State of the States: The AGA Survey of Casino Entertainment 2 

(2006), available at http://www.americangaming.org/assets/files 

/2006_Survey_for_Web.pdf. 
United States v. Falcon, No. 07-0105/NA 

12

rely on antiquated public policy to avoid his or her legal 

obligations.4 

We are “not unmindful of the importance that the doctrine 

of stare decisis plays in our decision-making.” United States 

v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003). Applying stare 

decisis is “‘the preferred course because it promotes the 

evenhanded, predictable, and consistent development of legal 

principles, fosters reliance on judicial decisions, and 

contributes to the actual and perceived integrity of the 

judicial process.’” Id. (quoting Payne v. Tennessee, 501 U.S. 

808, 827 (1991)). However, “Stare decisis is not an inexorable 

command; rather, it ‘is a principle of policy and not a 

mechanical formula of adherence to the latest decision.’” 

Payne, 501 U.S. at 828 (citation omitted). 

The gambler’s defense was neither rooted in statute nor 

constitutional law, but was a court-made principle based wholly 

on public policy. Where a judicial decision is based on public 

policy and that policy has changed, the doctrine of stare 

decisis does not prohibit this court from revisiting that 

 

4

 We will address allegations that third party complicity negates 

a required element of a charged offense on a case-by-case basis 

and not with a sweeping defense based on public policy. The 

government maintains the burden of proving each element beyond a 

reasonable doubt and the accused remains free to raise such 

facts that show his conduct does not satisfy a necessary 

element. 
United States v. Falcon, No. 07-0105/NA 

13

decision. Cf. Vasquez v. Hillery, 474 U.S. 254, 266 (1986).5 We 

therefore conclude that Wallace should be, and is now, 

overruled.6 

Partial Mental Responsibility Defense

We now turn to whether the military judge abused his 

discretion when he did not inquire into and resolve alleged 

factual inconsistencies that arose during the sentencing portion 

of the trial. During sentencing Falcon testified about his 

gambling addiction and gambling practices, and SSgt Poole 

testified that Falcon had been diagnosed as a pathological 

gambler. 

Falcon argues these statements are inconsistent with the 

factual stipulation and his testimony during the providence 

inquiry where he acknowledged he acted knowingly with the intent 

to defraud. Falcon argues this inconsistency required the 

military judge to reopen the providence inquiry and determine 

whether the possibility of a defense of partial mental 

 

5

 The Supreme Court stated that precedent can be overruled if 

“changes in society or in the law dictate that the values served 

by stare decisis yield in favor of a greater objective.” 

Vasquez v. Hillery, 474 U.S. 254, 266 (1986). The rise of 

government sanctioned gambling reflects both a change in society 

and a change in law. 

6

 We do not address the ongoing validity of United States v. 

Walter, 8 C.M.A. 50, 23 C.M.R. 274 (1957), and United States v. 

Lenton, 8 C.M.A. 690, 25 C.M.R. 194 (1958), because the case 

before us addresses legal gambling and those cases dealt with 

illegal gambling. 
United States v. Falcon, No. 07-0105/NA 

14

responsibility existed. In contrast, the Government argues the 

evidence raised only the “mere possibility” of a defense and 

there is no authority to support the assertion that a 

pathological gambling diagnosis could negate Falcon’s specific 

intent to defraud the clubs. 

“A guilty plea will be rejected only where the record of 

trial shows a substantial basis in law and fact for questioning 

the plea.” United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 

2005). We review de novo the military judge’s legal conclusion 

that an appellant’s pleas were provident. Id.

A military judge is obligated to reopen the plea inquiry 

when a possible defense has been raised and not satisfactorily 

refuted because such a matter would be inconsistent with the 

accused’s guilty plea. United States v. Shaw, 64 M.J. 460, 462 

(C.A.A.F. 2007); see also Article 45(a), UCMJ, 10 U.S.C. § 845 

(2000). However, the “mere possibility” of a defense, without 

more, does not give rise to this obligation. Shaw, 64 M.J. at 

462 (citation omitted). 

In Harris we held that where a military judge had 

determined that the accused suffered from a severe mental defect 

or disease at the time of the offenses, and the accused was not 

aware that he suffered from such a disease at the time of the 

offense, the military judge had an obligation to inquire into 

the possible impact of those mental health issues on the 
United States v. Falcon, No. 07-0105/NA 

15

appellant’s guilty pleas. 61 M.J. at 398. In Shaw we held that 

the appellant’s reference to his diagnosis of bipolar disorder 

without more, “at most raised only the ‘mere possibility’ of a 

conflict with the plea.” 64 M.J. at 464. 

Initially, we disagree with Falcon’s assertion that his 

statements during sentencing were inconsistent with the 

stipulation of facts and his earlier testimony. At sentencing 

in response to a question from defense counsel if he ever 

thought about how he was going to pay for his next bet, Falcon 

responded, “I -- actually -- never really thought about it, 

ma’am, it just happened. I mean -– I guess I was -– I guess 

just write a check maybe get money to [gamble].” That testimony 

does not directly contradict his earlier testimony that he knew 

he was writing worthless checks and that he intended to defraud 

the clubs. Similarly, the sentencing testimony that he had a 

gambling addiction and had been diagnosed as a pathological 

gambler does not directly contradict his earlier testimony that 

he had a gambling problem and continued to gamble in order to 

win back the money he lost and to feel the rush or high that 

came from playing the slot machines. 

Nor do we agree with Falcon’s contention that this 

testimony placed the military judge on notice to make inquiry 

into the possibility of a defense of partial mental 

responsibility. In Shaw we held that the appellant’s reference 
United States v. Falcon, No. 07-0105/NA 

16

to a bipolar disorder, without more, was not enough to require 

the military judge to make further inquiry. 64 M.J. at 464. We 

made that holding even though we had previously recognized that 

a bipolar disorder may constitute a severe mental disease or 

defect. See Harris, 61 M.J. at 397-98; United States v. Martin, 

56 M.J. 97, 103 (C.A.A.F. 2001). While Harris and Martin

established that bipolar disorder “may exist with enough 

severity to raise a substantial question regarding the issue of 

the accused’s mental responsibility[,] . . . the disorder does 

not negate responsibility in all cases.” Shaw, 64 M.J. at 463. 

Falcon has provided no authority that a diagnosis of 

pathological gambling can constitute a defense of lack of mental 

responsibility or partial mental responsibility. One of the 

factors the court looked at in Shaw was that there was no 

factual record before the court indicating how, if at all, 

Shaw’s condition influenced his plea. Id. at 462. Based on the 

lack of any testimony that Falcon’s diagnosis could have 

affected his ability to form the specific intent to defraud, and 

on the lack of any authority that such a diagnosis may provide a 

partial mental responsibility defense, we hold that the military 

judge did not abuse his discretion when he failed to reopen the 

providence inquiry. 
United States v. Falcon, No. 07-0105/NA 

17

Conclusion

We hold the Wallace gambler’s defense does not apply to 

Falcon’s Article 123a, UCMJ, 10 U.S.C. § 923a (2000), conviction 

for worthless checks and that the military judge did not abuse 

his discretion in not inquiring into a possible partial mental 

responsibility defense. Finally, we prospectively overrule 

United States v. Wallace, 15 C.M.A. 650, 36 C.M.R. 148 (1966), 

and the concept of a gambler’s defense. The decision of the 

United States Navy-Marine Corps Court of Criminal Appeals is 

affirmed.