This section contains the nature of the case and procedural background.

Souza caught a 386-pound bluefin tuna in the waters off Cape Cod. Souza showed the fish to buyers from three different companies. He chose Gulfstream Seafood, Inc. (Gulfstream, of which D was the owner and president), because 'Mr. Moreton's company told me that I could be paid within a week. A little over a week later, Souza learned that the tuna had been sold at auction on October 5 and that his share of the proceeds was $2,915.89. Souza repeatedly called D and the Gulfstream employee who had represented the company on the dock, demanding his money. On November 14, Souza spoke to D on the telephone. D agreed to send Souza a check immediately. Upon receiving the check, Souza telephoned the bank to ask whether there were sufficient funds to cover the check. There were not. Souza told him to hold the check for a few more days. Several days later, Souza called the bank again, but there were still insufficient funds to cover the check. The bank manager told Souza to try again in a couple of days. It was not. D eventually told Souza he was going to file bankruptcy. Souza deposited the check anyway in order to have a record that there were insufficient funds. The check was returned. D did not return Souza's calls. About a week later, Souza received a 'bankruptcy notice.' He filed a claim in the subsequent Gulfstream bankruptcy proceedings. Souza filed an application for a criminal complaint for larceny by check and 'embezzlement larceny.' The court found that the goods were placed on consignment and that D committed a larceny. The judge found D guilty of the larceny and not guilty of the larceny by check. D appealed.

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