to let you know that CAAF has issued two opinions while we were distracted by the NDAA changes.

United States v. Payne, and United States v. Passut.

Payne reminds them that a judge is supposed to give correct instructions; here the judge got it wrong, but so what, it was harmless BRD.  Of note to defense counsel, when objecting to a judge’s instructions don’t be “general,” have some specificity.  The analysis of how specific an objection was new to CAAF.  But they found that they could safely compare the specificity for preserving an evidentiary objection to that of preserving an instructions objection.  Perhaps a military judge faced with a rather general objection could task both sides to be a tad more specific, to help her understand the problem.

Passut is quite simple.  When a servicemember goes to the Exchange to cash a check to pay for items, he or she is making an official statement that may be prosecuted under UCMJ art. 107, if in the process there are false statements or representations.

One Response to “We interrupt this message. . .”

  1. AF JAG says:

    A brief note on recent prognostications in the United States v. Passut, “false offical statement” case:
    CAAFLog:  “I’m grasping for an example of retail check cashing as a military function sufficient to make statements related to that function ‘official.’  Officers clubs used to cash checks, and there is some caselaw discussing offenses related to worthless checks cashed at clubs, but I’m not aware of any caselaw affirming violations of Article 107 in these circumstances.  Absent precedent, its unlikely CAAF will now decide to call check cashing by the civilianized exchange a ‘military function‘” CAAFLog,  posted 27 September 2013 (emphasis added).
    CAAF:  “[I]n Appellant’s view, the applicability of Article 107, UCMJ, should not turn on whether the person in question is cashing a check at AFFES or a 7-Eleven.  We disagree.  AAFES is not 7-Eleven, and that matters, as Article 107, UCMJ, is intended to protect the integrity of governmental functions, specifically, military functions . . . Appellant’s argument that the act of cashing a check at AAFES is no different that doing the same at the Armed Forces Bank is not persuasive.”  United States v. Passut, 13-0518/AF, slip op. at 8, 13 (C.A.A.F. 8 January 2014).
    WHOOPS!  Looks like CAAF:  1; CAAFLog:  0.
    Hurray for an exercise in common sense by the Court!