In Commonwealth v. Bonilla, the Court of Appeals held that the evidence was sufficient to support the defendant’s conviction of larceny over $250 by a single scheme, but that the evidence was insufficient to support his conviction of uttering a false instrument. “The defendant deposited six $5,000 checks, one into each of six newly opened bank accounts at Metro Credit Union, for a total amount of $30,000. The next day, the defendant returned to Metro Credit Union and withdrew $600 in cash, $200 from each of three of the new accounts: $200 was the maximum amount available for each new account until the original deposit checks cleared. Sometime after the defendant withdrew the $600, Metro Credit Union was informed that all six of the initial checks had been dishonored and were being returned to the bank. Three of the returned checks were drawn from the defendant’s TD Bank account, which had been opened only one week earlier; the other three checks, from his East Boston Savings Bank account, were returned because the account had been closed. Thereafter, the defendant made no attempt to pay back the money he had withdrawn.”
In its decision on the larceny count, the Appeals Court opined that the above evidence permitted the jury to find that the defendant “had the specific intent to deprive Metro Credit Union of its property permanently.” The Court “note[d] that the defendant left the bank with $600 in cash and failed to cure the defects in the checks after they were returned to Metro Credit Union.”
The Court “noted that the defendant left the bank with $600 in cash and failed to cure the defects in the checks after they were returned to Metro Credit Union.”
The Court further found that the evidence did not support a conviction of uttering, which required that the Commonwealth “show that the defendant: ‘(1) offered as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.” “The Court explained that the checks deposited by the defendant into the new accounts at Metro Credit Union “were written from the defendant’s own accounts at other banks and … were not forged, false, or altered…. Nor was there a dispute about authenticity of the defendant’s signature, which appeared on the front of each of the six checks presented for deposit.” The Court cited a decision interpreting a federal statute which held “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.”’” The Appeals Court noted “Massachusetts has a “bad check” statute which permits the inference that the Legislature did not intend for defendants to be punished under the uttering statute for writing bad checks.”