CAAF heard the last scheduled oral arguments of the term on May 16, but on Friday, May 18 it granted review in a new case:

No. 12-0414/AR.  U.S. v. David G. SPICER, Jr.  CCA 20090608.  Review granted on the following issue:


Briefs will be filed under Rule 25.

This seemingly-innocuous case may actually be a Hayes trailer (though I might just be seeing zebras). If you’re not familiar with Hayes, it was the “really, really scary” case where the Air Force convicted an airman, who consumed alcohol underage, of dereliction of duty because his alcohol consumption violated a state law. CAAF reversed unanimously, but I still found something to complain about. Read the argument recap and opinion analysis.

Spicer was argued at the ACCA on January 19, 2012, which considered the issue of legal sufficiency under Charge I. I don’t have a link to the appellant’s brief to the ACCA, but the government’s brief on this issue is still accessible at this link. It explains the tragic circumstances of this case, which involve severe neglect by the appellant of his two young children, one seven months of age and the other two and a half years old. Private Spicer eventually stopped playing video games long enough to realize that his children were in desperate shape and made plans to take them to the hospital, but first fabricated a cover story involving a babysitter (and then a second story involving a drug dealer). He told these stories to the civilian police, but eventually admitted that these stories were false. He was charged and convicted of two specifications of false official statement in violation of Article 107 for these statements to the police, was also convicted of two specifications of child endangerment by design in violation of Article 134, and was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The ACCA’s summary disposition of the case is unremarkable, except that it drew a concurring opinion from Judge Krauss that reads, in relevant part:

I join the majority in approving appellant’s convictions for false official statement to the extent that finding is based on the fact that appellant’s duty to protect his children from harm casts his dishonest statements to the civilian police, in this case, into the realm of official statements contemplated under Article 107, UCMJ. Because “[t]he circumstances leading up to and surrounding the statements made to the [Colorado Springs] police bear a clear and direct relationship to appellant’s duties as a [soldier] and reflect a substantial military interest in the investigation,” such statements are official for purposes of Article 107 as a matter of law. United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003).

A soldier’s duty to protect his children from harm is recognized as a military duty by common law, executive action, custom, and regulation. See United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003); Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007); Manual for Courts-Martial, United States (2008 ed.), para. 68a. analysis at A23-20. The evidence in the case at hand establishes that appellant’s statements to the police were prompted and defined by his effort to avoid liability and accountability for his violation of that duty and therefore bore a clear and direct relationship to his duties as a soldier. The evidence also establishes the undoubted, immediate, and substantial military interest in any investigation, criminal or command, relative to the well-being of a soldier’s dependents. Appellant’s statements to the civilian police before any military investigation was underway were therefore official under Article 107, as a matter of law, and subject to prosecution under same. Teffeau, 58 M.J. at 69.

United States v. Spicer, No. 20090608, Slip op. at 3 (A. Ct. Crim. App., January 31, 2012) (footnote omitted). Hayes turned on the absence – in the record and on appeal – of evidence “to support the proposition that [Hayes] was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law, or in the alternative, all state laws in Nevada — an obligation imposed on all citizens within the state.” United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2012).

Well, such evidence exists in Spicer, as so neatly summarized by Judge Krauss. But just because the government (that is to say, the Executive) created “a soldier’s duty to protect his children from harm,” does that mean that Congress intended the prohibition on false official statements under Article 107 to encompass lies told by a soldier to civilian law enforcement investigating a state law crime involving that soldier’s family? And if the answer is “yes,” then what other lies about one’s private life might also be false official statements?

If this is the direction CAAF is headed in this case, it’s a great reason for a late-term oral argument.

Case Links:
Appellant’s supplemental brief to ACCA
Appellee’s (government) brief to ACCA
ACCA opinion
Blog post: Will CAAF extend its oral argument calendar?

One Response to “Will CAAF extend its oral argument calendar?”

  1. Cloudesley Shovell says:

    It would be a wonderful thing indeed if CAAF would draw any sort of line against the further expansion of Article 107, but I’m not holding my breath.  The legal principle that criminal statutes are to be strictly construed and Art. 107 jurisprudence have long since parted ways.
    I just finished reading the book “Band of Brothers”, which cites the book “Wartime” by Paul Fussell, for an entertaining definition.  “Chickenshit refers to behavior that makes military life worse than it need be: petty harassment of the weak by the strong; open scrimmage for power and authority and prestige; sadism thinly disguised as necessary discipline; a constant ‘paying off of old scores’; and insistence of the letter rather than the spirit of ordinances.  Chickenshit is so called–instead of horse- or bull- or elephant shit–because it is small-minded and ignoble and takes the trivial seriously.”
    What does that definition have to do with this case?  Everything, or nothing.  Spicer was convicted of child endangerment by design and got 10 years.  Why is the false official statement even there? 
    Yet another case where the government had many opportunities to clean up a strong case by getting rid of the 107 charge, which had utterly nothing to do with the 10 year sentence, yet did not do so.  Why?  I don’t know.  But I do like that definition of chickenshit.