Chief Judge Baker writes for the court, with Judge Stucky dissenting. Opinion here.

. . . Appellant’s statements were appropriately determined to be false, but were not official. Appellant did not make the statements in the line of duty. He did not disobey a specific order to provide for his family, and the statements do not bear a clear and direct relationship to his official duties. Furthermore, while Appellant’s statements ultimately affected on-base persons performing official military functions, Appellant made the statements to civilian law enforcement officials who were not conducting any military function at the time the statements were made. When Appellant made the statements, the CSPD detectives were not operating a joint investigation with military officials or performing any other military functions. Thus, the present facts do not fall within the meaning of an official statement for the purposes of Article 107, UCMJ.

Accordingly, we hold that the evidence was not legally sufficient to support the findings of guilty of making false official statements under Charge I.

Slip op. at 13. Judge Stucky writes:

I conclude that Congress intended Article 107 to criminalize false statements made to civilian law enforcement agents acting in their official capacity. I would therefore affirm the judgment of the United States Army Court of Criminal Appeals.

Diss. op. at 4. More to follow.

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?
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: CAAF reverses in Spicer

4 Responses to “CAAF reverses in Spicer”

  1. publius-publicola says:

    J. Stucky rocks.  Very persuasive dissent. 

  2. Cloudesley Shovell says:

    I applaud this long-overdue decision as an important step in returning Article 107 to its proper and limited scope in ensuring the integrity of truly military statements, where the truthfulness of those statements is an integral part of the proper and regular functioning of the military.  I would applaud this as a small but significant victory to prove that the rule of lenity is only mostly dead, but alas the word lenity appears nowhere in the Court’s opinion.  The rule may cling to life, but now only anonymously.
    For you prosecutors out there desperate to imprison the next Martha Stewart for lying because you can’t make a real case based upon a real crime, why not comb the US Code and the applicable state statutes for something you can incorporate via Article 134.  There are enough laws out there to make anybody a criminal with only minimal effort.
    In the meantime, do the United States and the justice system a favor by not cluttering up a slam-dunk child endangerment case with distracting charges of lying.  This contemptible accused would have been sentenced to 10 years without the burden of years of appellate litigation over the silly stuff.
    Thank you, carry on, yes I feel much better now.
    Most humbly,

  3. Mike "No Man" Navarre says:

    I’d say the rule of lenity is relatively close to the go through its pockets and look for loose change stage.  But, I am a glass 99/100ths empty kinda guy, so keep up the optimism CS.

  4. publius-publicola says:

    If CAAF is using the rule of lenity, it should define it and explain how it is applied.  See this discussion taken from 119 Harv. L. Rev. 2420-21 (2006):
    When interpreting criminal laws, courts routinely recite the maxim that “penal statutes should be strictly construed against the government.”  This canon of construction, known as the rule of lenity, requires that a court interpreting a criminal statute resolve any ambiguity in favor of the defendant.  The rule’s application in the United States dates at least to 1820,  when Chief Justice Marshall described it as “perhaps not much less old than construction itself.”  Modern courts describe the rule as “venerable” and “well-recognized.”  Despite its long pedigree and apparent continuing endorsement by the courts, the rule of lenity has recently become the target of substantial criticism. Observers argue that courts apply the rule inconsistently, or even randomly.  Many go further and claim that courts have stopped applying it altogether.  These critics explain the routine invocations of the rule of lenity as mere lip service: courts may nominally acknowledge the rule, but they find statutes to be unambiguous and therefore decline to apply it unless they would have found for the defendant on other grounds anyway.  Some of these critics welcome the rule’s apparent demise.  They argue that it cannot be justified by any of its traditional rationales and therefore conclude that the courts would do well to make their abandonment of the rule official.  Other scholars disagree with this normative conclusion and instead advocate a return to a more robust application of lenity. Both camps, however, assume that modern courts have rendered the rule of lenity largely impotent.
    …  [T]he Supreme Court [has] not applied the rule to every ambiguous penal statute.  However, lenity is not defunct.  In a small but significant number of cases, the Court applied the rule to reach results that cannot plausibly be explained on other grounds.  Moreover, the application of the rule was neither random nor unprincipled.  Instead, the Court seems to have adopted a narrower rule of lenity de facto.  The new rule requires that an ambiguous criminal statute be construed narrowly only when a broad interpretation would penalize “innocent” conduct.  As the term is used here, a statute punishes “innocent” conduct if it defines a strict liability offense or if the conduct at issue is not wrong by its very nature but rather wrong because it is prohibited (malum prohibitum instead of malum in se) and the statute does not make knowledge of wrongfulness or illegality an element of the offense.  This new, innocence-protecting rule of lenity is arguably an improvement over the traditional rule.  It not only better describes current judicial practice, but also rests on stronger normative foundations.  First, the new rule more closely aligns with one of lenity’s primary justifications:  providing notice of the scope of criminal conduct.  Second, like many of the Court’s substantive canons of statutory construction but unlike the traditional version, the new rule protects important or “quasi-constitutional” values from inadvertent or casual infringement by Congress.  Finally, the new rule would resolve potential tensions between the rule of lenity and other canons of construction that depend on a threshold finding of ambiguity, most notably Chevron deference.