The twin Article 107 cases of United States v. Capel, No 12-0320/AF, 71 M.J. 485 (C.A.A.F. Feb. 14, 2013) (CAAFlog case page) (link to slip op.), and United States v. Spicer, No. 12-0414/AR, 71 M.J. 470 (C.A.A.F. Feb. 6, 2013) (CAAFlog case page) (link to slip op.), were argued on the same day last October, during the court’s first week of argument of the term. But despite Capel being argued first, Chief Judge Baker’s opinion could be summarized in two words: See Spicer. In Spicer, decided just one week before Capel, the Chief Judge wrote for a four-judge majority reversing convictions of making false official statements after finding that Article 107 is limited to false “statements affecting military functions.” Spicer, slip op. at 8 (emphasis in original). The same three judges join the Chief Judge in reversing in Capel, with Judge Stucky again dissenting from the analysis.

In my analysis of Spicer, I theorized that the court’s decision “presumably prohibits virtually-all Article 107 prosecutions for false statements to civil authorities investigating civil offenses. . .” Capel convinces me that this is exactly the case, as SrA Capel lied to civil law enforcement officers who were investigating Capel’s thefts from his military superior, and Capel was in uniform at the time he lied, yet CAAF finds that the lies “were not ‘official statements’ for the purposes of Article 107, UCMJ.” (The fact that Capel was in uniform at the time of the false statements isn’t in Chief Judge Baker’s opinion, but it is captured at the bottom of page 4 of Capel’s brief to CAAF).

The majority’s discussion is so short, it’s reproduced here in its entirety:

In United States v. Spicer, __ M.J. __ (C.A.A.F. 2013), we set forth a framework for determining whether an accused’s false statements qualify as official statements for the purposes of Article 107, UCMJ, particularly when such statements are made to civilian authorities. In such a case, an accused may make a false official statement for the purposes of Article 107, UCMJ, if the statement is made “‘in the line of duty,’ or to civilian law enforcement officials if the statement bears a ‘clear and direct relationship’ to the [accused’s] official duties.” Spicer, __ M.J. at __ (12) (citations omitted); United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003). Similarly, the statement at issue may be official for such purposes if the one to whom the statement is made “is a civilian who is performing a military function at the time the [accused] makes the statement.” Spicer, __ M.J. at __ (12). Here, the record is devoid of any evidence to indicate that Appellant’s appearance at the police station and his subsequent statements to Detective Renfroe were pursuant to any specific military duties on Appellant’s part. Likewise, there is nothing in this record to indicate that at the time Appellant made the statements, Detective Renfroe was acting on behalf of military authorities or that he was in any other way performing a military function.

The offense in question occurred off base. Appellant’s command referred him to the local civilian police for resolution of the matter. And, while theft among military personnel can certainly impact unit morale and good order and discipline, it is the relationship of the statement to a military function at the time it is made –- not the offense of larceny itself –- that determines whether the statement falls within the scope of Article 107, UCMJ, as opposed to 18 U.S.C. § 1001 (2006), or an equivalent state statute. Therefore, we hold that Appellant’s statements were not “official statements” for the purposes of Article 107, UCMJ.

Capel, slip op. at 6-7 (footnote omitted). Judge Stucky’s partial dissent (he concurs with the order remanding the case for consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012)) is equally brief:

The plain and clear language of Article 107, Uniform Code of Military Justice (UCMJ), proscribes the making of “any other false official statement.” 10 U.S.C. § 907 (2006). Appellant’s statements to civilian law enforcement agents, investigating allegations of criminal conduct as part of their official duties, were “official statements.” See United States v. Spicer, __ M.J. __ (4) (C.A.A.F. 2013) (Stucky, J., dissenting). Therefore, I would affirm the judgment of the United States Air Force Court of Criminal Appeals (CCA) affirming Appellant’s conviction for making false official statements.

Capel, diss. op. at 1.

Thus, with two short opinions, Article 107 is no longer the reliable fix for a slim charge sheet. That noise you heard? It was from prosecutors everywhere who suddenly cried out in terror, and were suddenly silenced.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument
CAAF opinion
Blog post: Opinion analysis

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