On 10 April, NMCCA issue a published opinion that I had thus far overlooked. United States v. Morgan, __ M.J. ___, No. NMCCA 200401114 (Apr. 10, 2007).
Morgan‘s central holding is that a Sailor on leave who lies to civilian police investigating a civilian murder entirely unconnected to the Sailor’s duties is not guilty of making a false official statement.
Despite setting aside the false official statement conviction, NMCCA proceeded to apply Sales and affirm the sentence as adjudged. As much as I despise Sales, I must agree with NMCCA this time. The military judge had instructed the members that the false official statement was multiplicious for sentencing purposes with one of the other offenses. So if the members followed the military judge’s instructions — and courts will generally assume that members do follow the judge’s instructions — then the sentence was not enhanced by the Article 107 conviction.