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Zahavi v. State

Supreme Court of Nevada

February 26, 2015

HAREL ZAHAVI, Appellant,
v.
THE STATE OF NEVADA, Respondent

As Corrected March 12, 2015.

Appeal from an amended judgment of conviction, pursuant to a jury verdict, of four counts of drawing and passing a check without sufficient funds in drawee bank with intent to defraud, presumptions of intent to defraud (felony), in violation of NRS 205.130 and NRS 205.132. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

Nguyen & Lay and D. Matthew Lay, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Bernard B. Zadrowski, Deputy District Attorney, Clark County, for Respondent.

HARDESTY, C.J. We concur: Parraguirre, J., Douglas, J., Cherry, J., Saitta, J., Gibbons, J., Pickering, J.

OPINION

Page 596

BEFORE THE COURT EN BANC.

HARDESTY, C.J.:

Appellant Harel Zahavi was convicted of violations of NRS 205.130, Nevada's so-called bad-check statute, when $384,000 in casino markers, payable to four Las Vegas casinos, were returned for insufficient funds.

In this appeal, we must determine whether the district court erred when it refused to instruct the jury that a casino's knowledge of insufficient funds negates the intent-to-defraud element under NRS 205.130 or, alternatively, constitutes an affirmative defense. If not, we must consider whether NRS 205.130 violates the Nevada Constitution.

While we conclude that a casino's knowledge of insufficient funds may negate the intent to defraud, we find no basis for a separate jury instruction, or alternatively, an affirmative defense. Furthermore, we conclude that the district court did not commit any additional errors, and that NRS 205.130 is constitutional. As such, we affirm Zahavi's convictions.

FACTS AND PROCEDURAL HISTORY

Beginning in the late 1990s, Zahavi began gambling, obtaining lines of credit, and executing markers at various Las Vegas casinos. In order to obtain credit and receive markers at a casino, the casino requires the patron to complete a credit application. The casino then obtains a credit report which shows a past history of the player and his play at other casinos, including any amounts owed in markers to other casinos. The credit application also requires the patron to provide bank account information and the casino often checks directly with the bank to determine the balances in those accounts. If the casino determines the patron to be creditworthy, it grants a line of credit and the patron may obtain markers that can be exchanged on the casino floor for gaming chips. Each marker contains language that informs the patron that the marker is like a personal check and may be withdrawn at any time from the patron's bank account, and it must be signed by the patron before use. However, it appears that casinos generally do not immediately deposit the markers and often agree, as a courtesy to their customers, to hold gaming markers until a designated disposition date, or longer if the patron is working with the casino to pay off any remaining balance on the marker.

Over the years, Zahavi would regularly accumulate large amounts of debt to various Las Vegas casinos and then slowly pay back the money owed on the markers. Prior to the events that led to Zahavi's conviction in this case, no casino had ever deposited one of Zahavi's markers and had it returned for insufficient funds. In September 2008, Zahavi liquidated many of his available assets and paid approximately $700,000 worth of outstanding debt owed on various casino markers.

Page 597

At issue in this matter is the execution of 14 casino markers, totaling $384,000, that were obtained on existing and new lines of credit by Zahavi between October and December 2008 at four Las Vegas casinos. In October 2008, Zahavi increased his existing line of credit at the Venetian Resort and Casino, and executed nine different markers at the Venetian and the Palazzo Hotel and Casino,[1] ranging from $2,000 to $50,000 each, totaling $184,000. When he signed each marker, Zahavi represented that he understood that the credit instrument was identical to a personal check and that it was payable upon demand. The evidence introduced during trial shows that at the time the Venetian and Palazzo extended Zahavi's line of credit and issued him the $184,000 worth of markers, they had Zahavi's credit report from August 2008 on file. The evidence showed he had an average of $25,000 to $50,000 in one bank account and an average of $50,000 to $75,000 in another. The evidence also showed actual amounts in the two accounts ranging from $7,500 to $10,000, and $100,000 to $250,000.[2] When Zahavi failed to timely pay the markers, they were presented for payment from Zahavi's bank accounts and returned for insufficient funds.

Also in October 2008, after completing a credit application and establishing a $100,000 credit line at the Hard Rock Hotel and Casino, Zahavi executed two $50,000 markers at the Hard Rock. Again, upon signing the markers, Zahavi represented that he understood the credit instrument was identical to a personal check and that the marker was payable upon demand. The Hard Rock obtained information concerning Zahavi's bank accounts from the Wynn Hotel and Casino, which reported that as of August, he had an average balance of between $40,000 and $60,000 in one account, and an actual balance of $7,000 to $9,000. The other account had an average balance of between $40,000 to $60,000, and an actual balance of $100,000 to $300,000. The Hard Rock also knew he had roughly $487,500 in outstanding markers but had no knowledge of his recent payments. Two days after issuing him the markers, the Hard Rock obtained actual bank statements from Zahavi, indicating a total balance of roughly $27,000 between the two accounts. Zahavi failed to timely repay his outstanding marker balance, and the Hard Rock presented the two markers for payment from Zahavi's bank accounts, both of which were returned for insufficient funds.

In December 2008, Zahavi then drew three additional markers, based on an existing line of credit established at Caesars Palace Hotel and Casino. In signing the markers, Zahavi made similar representations that the markers were payable on demand and he had sufficient funds. There was no evidence introduced during the trial that Caesars Palace had any knowledge of the present state of Zahavi's accounts and that the credit report they had on file for Zahavi dated back to 2005. After multiple collection efforts were made, Caesars presented the three markers, totaling $100,000, for payment from Zahavi's bank accounts, all of which were returned due to insufficient funds.

Upon receipt of the returned markers, all four casinos sent Zahavi a required ten-day demand letter requesting payment. Zahavi again failed to pay. Subsequently, all 14 unpaid markers were sent to the Clark County District Attorney's Office for criminal prosecution under the bad-check statute. The State filed an indictment against Zahavi for writing checks with insufficient bank funds with intent to defraud. The indictment included four counts, one for each casino from which Zahavi had executed the 14 markers: the Venetian, Palazzo, Hard Rock, and Caesars.

At trial, the district court gave jury instruction 18, over Zahavi's objection, which stated that " [w]hether a payee chooses to cash a check immediately or at a later date does ...


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