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, 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 wrote for the unanimous court, finding that:

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’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:

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Chief Judge Baker writes for the court, with Judge Stucky dissenting. Opinion here.

. . . Appellant’s statements were appropriately determined to be false, but were not official. Appellant did not make the statements in the line of duty. He did not disobey a specific order to provide for his family, and the statements do not bear a clear and direct relationship to his official duties. Furthermore, while Appellant’s statements ultimately affected on-base persons performing official military functions, Appellant made the statements to civilian law enforcement officials who were not conducting any military function at the time the statements were made. When Appellant made the statements, the CSPD detectives were not operating a joint investigation with military officials or performing any other military functions. Thus, the present facts do not fall within the meaning of an official statement for the purposes of Article 107, UCMJ.

Accordingly, we hold that the evidence was not legally sufficient to support the findings of guilty of making false official statements under Charge I.

Slip op. at 13. Judge Stucky writes:

I conclude that Congress intended Article 107 to criminalize false statements made to civilian law enforcement agents acting in their official capacity. I would therefore affirm the judgment of the United States Army Court of Criminal Appeals.

Diss. op. at 4. More to follow.

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

Audio of the oral argument of United States v. Spicer, No. 12-0414/AR, on Wednesday, October 10, 2012, is posted on the court’s website at this link.

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

After the court hears oral argument in United States v. Capel, No. 12-0320/AF (link to argument preview, which you should read before reading this preview) on Wednesday of next week, CAAF will continue its exploration of the reach of Article 107 with United States v. Spicer, No. 12-0414/AR, in which it granted the following issue:

Whether the evidence is legally sufficient to support the findings of guilty of making false official statements under Charge 1.

I discussed Spicer shortly after it was granted:

[T]he tragic circumstances of this case . . . involve severe neglect by the [A]ppellant of his two young children, one seven months of age and the other two and a half years old. Private Spicer eventually stopped playing video games long enough to realize that his children were in desperate shape and made plans to take them to the hospital, but first fabricated a cover story involving a babysitter (and then a second story involving a drug dealer). He told these stories to the civilian police, but eventually admitted that these stories were false. He was charged and convicted of two specifications of false official statement in violation of Article 107 for these statements to the police, was also convicted of two specifications of child endangerment by design in violation of Article 134, and was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The ACCA’s summary disposition of the case is unremarkable, except that it drew a concurring opinion from Judge Krauss that reads, in relevant part:

I join the majority in approving appellant’s convictions for false official statement to the extent that finding is based on the fact that appellant’s duty to protect his children from harm casts his dishonest statements to the civilian police, in this case, into the realm of official statements contemplated under Article 107, UCMJ. Because “[t]he circumstances leading up to and surrounding the statements made to the [Colorado Springs] police bear a clear and direct relationship to appellant’s duties as a [soldier] and reflect a substantial military interest in the investigation,” such statements are official for purposes of Article 107 as a matter of law. United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003).

A soldier’s duty to protect his children from harm is recognized as a military duty by common law, executive action, custom, and regulation. See United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003); Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007); Manual for Courts-Martial, United States (2008 ed.), para. 68a. analysis at A23-20. The evidence in the case at hand establishes that appellant’s statements to the police were prompted and defined by his effort to avoid liability and accountability for his violation of that duty and therefore bore a clear and direct relationship to his duties as a soldier. The evidence also establishes the undoubted, immediate, and substantial military interest in any investigation, criminal or command, relative to the well-being of a soldier’s dependents. Appellant’s statements to the civilian police before any military investigation was underway were therefore official under Article 107, as a matter of law, and subject to prosecution under same. Teffeau, 58 M.J. at 69.

At the time CAAF granted review, I considered this case in the context of United States v. Hayes, 71 M.J. 112, No. 12-0900/AF (C.A.A.F. 2012), which I also discussed yesterday in my argument preview of United States v. Capel, No. 12-0320/AF. About Spicer, I wondered:

[J]ust because the government (that is to say, the Executive) created “a soldier’s duty to protect his children from harm,” does that mean that Congress intended the prohibition on false official statements under Article 107 to encompass lies told by a soldier to civilian law enforcement investigating a state law crime involving that soldier’s family? And if the answer is “yes,” then what other lies about one’s private life might also be false official statements?

The Appellant’s brief is elegantly short – clocking in at a mere eight pages – and highlights the trial-level objections to the charges alleging that the Appellant’s statements to the civilian police were false official statements: “At trial, PFC Spicer’s defense counsel argued, with respect to the two specifications brought under Charge I, as a matter of law the false statements SPC Spicer made to civilian authorities during and after making a 911 phone call were not ‘official.’ The military judge rejected these arguments and instructed the members, over defense objection, that the term ‘official’ could include such statements.” Appellant’s Br. at 3. The brief also highlights a trial-stage motion for a finding of not guilty to the Article 107 offense, and an objection to the military judge’s instruction to the members on this charge. There was also litigation of this issue at the ACCA.

But the Appellant’s argument focuses on footnote four of CAAF’s opinion in United States v. Day, 66 M.J. 172, 175 (C.A.A.F. 2008):

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.

(emphasis added). That’s a lot of hedging from CAAF back in 2008 (for instance, saying “in theory . . . might implicate . . .” invariably earns me dirty looks), and the Appellant “maintains that, just as this Court ruled in Day, the facts present in his case do not reach the theoretical requirements set forth in footnote four of the Day opinion.” Appellant’s Br. at 5. But the Appellant’s brief also contains the red meat I was hoping for:

It cannot be disputed that the statements in question were made to civilian authorities. To the extent the lower court ruled against PFC Spicer based on “[a] soldier’s duty to protect his children from harm”, it must be observed that every parent, military and civilian, has a duty to protect their children from harm. There is nothing unique about military service that gives rise to some hypothetical duty that exists above and beyond duties of care held by civilian parents.

Appellant’s Br. at 6 (citation to record omitted) (emphasis added). Right on.

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CAAF heard the last scheduled oral arguments of the term on May 16, but on Friday, May 18 it granted review in a new case:

No. 12-0414/AR.  U.S. v. David G. SPICER, Jr.  CCA 20090608.  Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY OF MAKING FALSE OFFICIAL STATEMENTS UNDER CHARGE I.

Briefs will be filed under Rule 25.

This seemingly-innocuous case may actually be a Hayes trailer (though I might just be seeing zebras). If you’re not familiar with Hayes, it was the “really, really scary” case where the Air Force convicted an airman, who consumed alcohol underage, of dereliction of duty because his alcohol consumption violated a state law. CAAF reversed unanimously, but I still found something to complain about. Read the argument recap and opinion analysis.

Spicer was argued at the ACCA on January 19, 2012, which considered the issue of legal sufficiency under Charge I. I don’t have a link to the appellant’s brief to the ACCA, but the government’s brief on this issue is still accessible at this link. It explains the tragic circumstances of this case, which involve severe neglect by the appellant of his two young children, one seven months of age and the other two and a half years old. Private Spicer eventually stopped playing video games long enough to realize that his children were in desperate shape and made plans to take them to the hospital, but first fabricated a cover story involving a babysitter (and then a second story involving a drug dealer). He told these stories to the civilian police, but eventually admitted that these stories were false. He was charged and convicted of two specifications of false official statement in violation of Article 107 for these statements to the police, was also convicted of two specifications of child endangerment by design in violation of Article 134, and was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The ACCA’s summary disposition of the case is unremarkable, except that it drew a concurring opinion from Judge Krauss that reads, in relevant part:

I join the majority in approving appellant’s convictions for false official statement to the extent that finding is based on the fact that appellant’s duty to protect his children from harm casts his dishonest statements to the civilian police, in this case, into the realm of official statements contemplated under Article 107, UCMJ. Because “[t]he circumstances leading up to and surrounding the statements made to the [Colorado Springs] police bear a clear and direct relationship to appellant’s duties as a [soldier] and reflect a substantial military interest in the investigation,” such statements are official for purposes of Article 107 as a matter of law. United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003).

A soldier’s duty to protect his children from harm is recognized as a military duty by common law, executive action, custom, and regulation. See United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003); Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007); Manual for Courts-Martial, United States (2008 ed.), para. 68a. analysis at A23-20. The evidence in the case at hand establishes that appellant’s statements to the police were prompted and defined by his effort to avoid liability and accountability for his violation of that duty and therefore bore a clear and direct relationship to his duties as a soldier. The evidence also establishes the undoubted, immediate, and substantial military interest in any investigation, criminal or command, relative to the well-being of a soldier’s dependents. Appellant’s statements to the civilian police before any military investigation was underway were therefore official under Article 107, as a matter of law, and subject to prosecution under same. Teffeau, 58 M.J. at 69.

United States v. Spicer, No. 20090608, Slip op. at 3 (A. Ct. Crim. App., January 31, 2012) (footnote omitted). Hayes turned on the absence – in the record and on appeal – of evidence “to support the proposition that [Hayes] 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.” United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2012).

Well, such evidence exists in Spicer, as so neatly summarized by Judge Krauss. But just because the government (that is to say, the Executive) created “a soldier’s duty to protect his children from harm,” does that mean that Congress intended the prohibition on false official statements under Article 107 to encompass lies told by a soldier to civilian law enforcement investigating a state law crime involving that soldier’s family? And if the answer is “yes,” then what other lies about one’s private life might also be false official statements?

If this is the direction CAAF is headed in this case, it’s a great reason for a late-term oral argument.

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?