CAAF’s first week of oral arguments resumes on Wednesday of next week with United States v. Capel, No. 12-0320/AF. CAAF granted review of two issues, the first raised by defense counsel, and the second specified by the court:
I. Whether the lower court misapplied United States v. Fosler and United States v. Watkins in finding that, despite failing to expressly allege the terminal element, the Article 134 specification here states an offense.
II. Whether the evidence is legally sufficient to sustain appellant’s conviction for making a false official statement, Article 107, UCMJ, under this court’s decisions in United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2002), and United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).
Only Issue II was briefed. The facts are that in 2009 the Appellant, a Senior Airman (E-4), spent the night at the home of his friend and supervisor, Staff Sergeant (SSgt) [A]. Soon after, the SSgt observed fraudulent charges on his bank account, and suspected the Appellant. He reported his suspicions to his supervisors, who ordered him to have no contact with the Appellant and to report the crimes to local law enforcement. Subsequently, the Appellant was interrogated by local law enforcement. The Appellant reported to the interrogation in uniform, made a number of false statements during the interrogation, and provided a false written statement. Local authorities ultimately declined to prosecute, but the Appellant was charged and convicted, contrary to his pleas, by a military judge sitting as a special court-martial, of one specification of signing an official document with intent to deceive, two specifications of stealing property of a combined value of $955.99, and three specifications of obtaining services by false pretenses, in violation of Articles 107, 121, and 134, UCMJ. He was sentenced to confinement for six months, forfeiture of $200 pay per month for six months, reduction to E-1, and a bad-conduct discharge. The AFCCA affirmed without specifically considering the question of whether the document signed by the Appellant was an “official” document.
The briefs set out slightly different interpretations of CAAF’s opinions in Teffeau and Day; two seminal false official statement cases. In Teffeau, the court rejected “any absolute rule that statements to civilian law enforcement officials can never be official within the meaning of Article 107.” Teffeau, 58 M.J. at 69. In Day, the court explained that “the critical distinction is not whether the recipient of a statement is civilian or military, but whether the statements relate to the official duties of either the speaker or the hearer, and whether those official duties fall within the scope of the UCMJ’s reach.” Day, 66 M.J. at 174.
In his briefs at CAAF, the Appellant argues that “if those circumstances [leading up to and surrounding the official statement] bear a clear and direct relationship to an accused’s duties and reflect a substantial military interest in the investigation, [only] then an accused’s statements to civilian law-enforcement authorities can be considered official.” Appellant’s Br. at 8-9 (citation and quotation marks omitted). However, the Government advances a much broader interpretation: “a statement can be official when the subject matter of the civilian police investigation is of interest to the military and within the jurisdiction of the courts-martial system.” Gov’t Br. at 6.
The Appellant makes the case that the underlying crimes were not related to his military duties, because he used SSgt [A]‘s financial information off duty and off-base (except perhaps one purchase). The Appellant also argues that there was no substantial military interest in the civilian investigation, in part because “the military apparently did not express an interest in the investigation until civilian authorities waived jurisdiction.” Appellant’s Br. at 14.
In turn, the Government argues that the written statement relates to the Appellant’s military duties because of the relationship between him and SSgt [A], his superior and victim, and because of the disruptive effects of the crime on the unit (the no contact order and changes to the unit schedule). It further argues that the “Appellant’s crimes clearly fall within the scope of the UCMJ’s reach” based on his subsequent prosecution. Gov’t Br. at 8.
This isn’t the only case on CAAF’s docket this term that questions the reach of Article 107, a fact that’s particularly relevant considering that the court specified the issue in this case. The court also granted review in United States v. Spicer, No. 12-0414/AR, which involves a conviction for making false official statements to civilian law enforcement officers investigating Spicer’s neglect of his children, based on an assertion of “a soldier’s duty to protect his children from harm.” I discussed Spicer shortly after it was granted in this post. Conveniently, Spicer will be argued immediately after Capel (an argument preview is forthcoming).
Those who know me know that I generally believe that the UCMJ is overbroad for its purpose (or, at least, that it’s utilized in an overbroad fashion), even though I also think that the military justice system is generally better for an accused than a civilian alternative. I was (perhaps unfairly) disappointed that CAAF didn’t issue a stronger opinion last term in United States v. Hayes, 71 M.J. 112, No. 12-0900/AF (C.A.A.F. 2012) (finding that the Government failed to present sufficient evidence to support a conviction for dereliction of duty by violating a custom of the service to obey state-laws regarding drinking age).
I’m not convinced by the Government’s argument in Capel, particularly since I think the Government is subtly trying to expand the reach of Article 107 in its phrasing and application of the relevant legal test for an official statement. As such, I wonder if some of the CAAF judges are contemplating taking a harder line on the scope of the Code this term, beginning with the court’s analysis of the scope of Article 107. I’ll certainly be listening for one during next week’s oral argument.