When CAAF granted review of the question of the legal sufficiency of the conviction of making a false official statement in United States v. Spicer, No. 12-0414/AR, 71 M.J. 470, I saw the case as a trailer to United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2012). In Hayes, CAAF reversed a conviction for dereliction of duty thsat was based on a violation of a Nevada statute (prohibiting underage drinking), and an alleged custom of the Air Force to obey state laws. The Chief Judge explained:

There is no evidence in the record, and the Government points to none on appeal, to support the proposition that Appellant 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.”

Hayes, 71 M.J. at 114, slip op. at 7. Hayes was a case about the limits of the UCMJ, and so is Spicer. In Spicer, the Army CCA affirmed convictions of making false official statements, stemming from Private Spicer’s multiple false statements to civil law enforcement personnel investigating his severe neglect of his two young children, based on “a soldier’s duty to protect his children from harm.” United States v. Spicer, No. 20090608, slip op. at 3 (A. Ct. Crim. App., January 31, 2012) (Krauss, J. concurring). CAAF reverses the CCA, with Chief Judge Baker writing for the court and Judge Stucky dissenting.

CAAF’s grant made the case a referendum on the reach of Article 107, and Chief Judge Baker’s near-unanimous opinion sets-out three possible ways to interpret the phrase “Any person . . . who makes any other false official statement . . .” He then chooses the middle ground, limiting the reach of Article 107 to “statements affecting military functions.” Slip op at 8 (emphasis in original). However, despite not taking the most restrictive view of Article 107, the Chief Judge’s opinion has the potential to dramatically restrict the reach of Article 107 in the future.

The opinion begins by defining the “at least three possible” interpretations of the clause “any other false official statement”:

At its most expansive, the clause could reach any false statement that is in some way official, that is, any statement implicating a military, federal, or state function. At the other extreme, the clause could be read exclusively from the standpoint of the person making the statement, in which case, the speaker must be acting in the line of duty, or the statement must relate to the speaker’s official duties in order to fall under Article 107, UCMJ. Finally, the clause could be read to cover statements that implicate the official acts and functions of the hearer as well as the speaker.

Slip op. at 7. The majority settles on the interpretation of “statements that implicate the official acts and functions of the hearer as well as the speaker,” which includes:

statements based on the standpoint of the speaker, where either the speaker is acting in the line of duty or the statements directly relate to the speaker’s official military duties, and statements based on the position of the hearer, when the hearer is either a military member carrying out a military duty or the hearer is a civilian necessarily performing a military function when the statement is made. . . . The putative accused, in other words, is on fair notice of his or her liability based on an actual connection to military functions, rather than on the fortuity or likelihood that a matter will subsequently be referred to military jurisdiction.

Slip op. at 8-9. This discussion revolves the court’s opinion in United States v. Day, 66 M.J. 172 (C.A.A.F. 2008), in which then-Judge Baker wrote for a unanimous court, finding that the Appellant’s false statements to on-base emergency medical personnel were “official,” but that those made to the civilian 911 operator who dispatched the medical personnel were not “official.” Day included a footnote explaining that, “In theory, statements made to an off-base 911 operator might implicate Article 107, UCMJ, in situations where, among other things, there is a predictable and necessary nexus to on-base persons performing official military functions on behalf of the command.” Day, 66 M.J. at 175 n.4 (emphasis in original). Now-Chief Judge Baker clarifies that there are three possible ways for a false statement to implicate Article 107:

[1] The speaker may make a false official statement “in the line of duty,” or to civilian law enforcement officials if the statement bears a “clear and direct relationship” to the speaker’s official duties. [2] Alternatively, a statement may be official if the hearer is a military member “‘carrying out a military duty’ at the time the statement is made.”

[3] Finally, the statements at issue may be official if the hearer is a civilian who is performing a military function at the time the speaker makes the statement. The application of Article 107, UCMJ, here hinges on a critical temporal distinction: the hearer must be performing a military function at the time the statement is made, and not afterwards as a result of the statement. A statement made to a civilian law enforcement official acting in a civilian capacity cannot be said to pervert a military function until the law enforcement officer invokes, involves, or transfers the matter to military authorities.

Slip op. at 12 (citations and footnotes omitted) (emphasis added). In this case, the Appellant’s statements meet none of these criteria, as he “did not make the statements in the line of duty,” “the statements do not bear a clear and direct relationship to his official duties,” and the statements were made “to civilian law enforcement officials who were not conducting any military function at the time the statements were made.” Slip op. at 13. The Chief Judge does not use the same strong language he employed in Hayes (“there is no evidence in the record, and the Government points to none on appeal, to support the proposition that Appellant was bound by a military duty. . .”) to highlight the lack of a military nexus, but the message is clear.

Rejected are the Government’s arguments advanced on brief that “the scope of Article 107 is more expansive [than 18 U.S.C. § 1001]” (Gov’t Br. at 4 (emphasis added)), that “[a] soldier’s ability to fulfill his or her military duties and requirements is fundamentally predicated on his or her ability to care for family members and dependents” (Gov’t Br. at 6), and that “Appellant’s actions toward his sons shirked his command imposed military and parental duties and his lies [to civilian police] to cover up his crimes were squarely within the scope of Article 107” (Gov’t Br. at 6-7). Good riddance.

But Judge Stucky dissents. “By using the phrase ‘or makes any other false official statement,’ Congress clearly expressed its will that the statute be broadly interpreted, and that false official statements are not limited, as the majority insists, to ‘statements affecting military functions.'” Diss. op. at 2 (citations omitted) (emphasis in original). Without stating any limiting principle (assuming he believes there is one), Judge Stucky concludes that “Congress intended Article 107 to criminalize false statements made to civilian law enforcement agents acting in their official capacity.” Diss. op. at 4. And yet, something is missing.

Judge Stucky does not reconcile his dissent here with his joining in 2008 of then-Judge Baker’s opinion in Day, where the court unanimously agreed that “the evidence is not sufficient for us to conclude that the statements to the [civilian] 911 operator were official.” Day, 66 M.J. at 175. Certainly, the civilian 911 operator in Day was acting in a civil official capacity when answering the emergency call, taking the report, and alerting other civil authorities. Yet Judge Stucky agreed that there was insufficient evidence to find a violation of Article 107 in that case. But now, in Spicer, he would affirm based on false statements made to civil law enforcement performing a civil law enforcement function. How Judge Stucky sees the facts of Spicer as different from the facts of Day is unclear.

Except that perhaps Judge Stucky sees that this opinion will dramatically restrict the reach of Article 107, because when the hearer is a civilian, either the false statement must be made “in the line of duty” or bear a “clear and direct relationship to the speaker’s official duties,” or the hearer must be “performing a military function at the time the speaker makes the [false] statement.” Slip op. at 12. This presumably prohibits virtually-all Article 107 prosecutions for false statements to civil authorities investigating civil offenses, and Judge Stucky might see that as going too far. He just doesn’t really say so.

Fortunately, this theory is subject to immediate testing, as CAAF still has to decide United States v. Capel, No. 12-0320/AF. Capel was argued on the same day as Spicer, and involves false statements made to civil law enforcement authorities who were investigating the unauthorized use of a SSgt’s financial information. Capel has the added facts that when that Appellant made his false statements to the civil law enforcement authorities, he was in uniform, the offense had been reported because the SSgt’s command advised him to make the report, the command had also issued a no-contact order, and the SSgt was the Appellant’s supervisor. However, there was no overt coordination between military and civil investigators at that time.

CAAF could use the fact-specific circumstances of Capel (particularly the fact that the false statements were made while in uniform) to distinguish it from Spicer and affirm. But even if it does so, I suspect that it will also clarify that Spicer stands for the general rule that lying to civil authorities does not amount to a false official statement.

And maybe the court will also discuss the rule of lenity, and whether it applies.

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
Blog post: Opinion analysis

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