In United States v. Passut, No. 13-0518/AF (CAAFlog case page), CAAF is considering the application of the twin Article 107 cases of United States v. Spicer, No. 12-0414/AR (CAAFlog case page), and United States v. Capel, No 12-0320/AF (CAAFlog case page), to determine:

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.

Listening to the audio of the oral argument, I heard a lot of discussion focused on the nature of the hearer of the false statement (a civilian AAFES employee) and less focused on the nature of the activity (cashing a check).

The appellant pleaded guilty to making false statements to civilian employees while cashing checks with AAFES and with a private bank that was a tenant in the AAFES facility. But the CCA set aside only the specifications involving the false statements to the civilian employee of the private bank, and the Government did not appeal, leaving the practically-identical statements to the AAFES civilian employee for CAAF’s consideration. Taking at step back, the case is about the exact same type of false statements, made for the exact same purposes, in practically the exact same place, to two different civilians, some of the statements not official, others to be determined.

In Spicer the court discussed the three ways a statement might be “official”:

[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.

Spicer, 71 M.J. at 474-75 (citations removed) (formatting added). Passut is a case about type-3 statements, so the critical issue is determining if the civilian AAFES employee was “performing a military function” when the appellant lied to her to get checks cashed. If CAAF finds that the dispositive factor in making that determination is what AFFES is (whether it is an “instrumentality of the military”), then that determination is status-based (i.e., AAFES employees are always performing military functions) rather than activity-based (i.e., cashing checks for AAFES is a military function).

The three-type test from Spicer is pretty straightforward. But a status-based determination for type-3 statements would upend that simple test. Type-1 and 2 statements are activity-based; the statement must be connected to activity in the line of duty, clearly and directly related to official duties, or while carrying out military duties. Just because the speaker or hearer is in a certain status isn’t enough to make the statement official for Type-1 or 2 statements. Type-3 must be the same, or chaos will result.

Consider, if merely the AAFES employee, as an AAFES employee, and due to the nature of AAFES, is enough to make the false statements in connection with the check-cashing in Passut “official,” then what about an AAFES janitor… is a false statement to him (say, when sneaking into the exchange at night on a dare) “official”? Or the clerk processing a return, when a military customer lies about a stain on a shirt (“it was like that when I bought it”)? Or the store manager, when a service member lies on a job application for some off-duty work (“I’ve never been fired before”)? Or a contracted AAFES truck driver delivering a refrigerator when the active duty recipient lies (“sorry, I don’t have any cash for a tip”)? Where’s the limiting principle for “military function?”

If CAAF’s decision in Passut doesn’t focus on the activity (check cashing) and doesn’t yield a clear test for determining if an activity is a “military function,” things could get messy.

Case Links:
AFCCA opinion (72 M.J. 597)
Blog post: Published AFCCA decision on false official statements
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
CAAF argument audio
Blog post: A quick thought about Passut

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