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, 71 M.J. 470, 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 explained:
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 reverses the CCA, with Chief Judge Baker writing for the court and Judge Stucky dissenting.
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: