A couple of interesting items off the Daily Journal over the last few days. First a grant.
No. 13-0518/AF. U.S. v. Jordan C. PASSUT. CCA 37755. Review granted on the following issue:
WHETHER A STATEMENT MADE TO AN AAFES EMPLOYEE FOR THE PURPOSE OF CASHING A WORTHLESS CHECK SATISFIES THE “OFFICIAL” ELEMENT OF A FALSE OFFICIAL STATEMENT.
This was a particularly egregious form of bad check writing according to the facts in the AFCCA opinion. CAAF to add a nuance to United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013)? Spicer is the case that arguably cuts back on what is or isn’t an “official” statement for Article 107, UCMJ, purposes. The first list of arguments is out, but Passut awaits a date (Sr. J. Effron will sit for the September arguments). Likely Judge Stucky will write the opinion in Passut?
whether a false statement is official, or capable of perverting authorized military functions, “the critical distinction is . . . . 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.
And here is a summary judgement.
No. 13-5005/AF. U.S. v. Patrick CARTER. CCA 37715. On consideration of the issues certified by the Judge Advocate General of the Air Force, 72 M.J. 253 (C.A.A.F.2013), we conclude that the United States Air Force Court of Criminal Appeals did not err in finding that Appellee was prejudiced by the government’s failure to allege the terminal element for Specifications 1 and 2 under Charge III alleging child endangerment and indecent acts with the same child, both in violation of Article 134, UCMJ. SeeUnited States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72M.J. 225 (C.A.A.F. 2013). Accordingly, it is ordered that the first certified issue is answered in the affirmative and the second and third certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.*
* Baker, Chief Judge (dissenting):
I dissent based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).