CAAFlog » September 2013 Term » United States v. Passut

CAAF decided the Air Force case of United States v. Passut, No. 13-0518/AF, 73 M.J. 27 (CAAFlog case page) (link to slip op.), on January 8, 2014, finding that a civilian AAFES employee was performing a military function when Appellant lied to her to get checks cashed, affirming Appellant’s pleas of guilty to making false official statements and the decision of the Air Force CCA.

Chief Judge Baker writes for the court, joined by Judges Erdmann and Ryan and Senior Judge Effron. Judge Stucky writes separately, concurring in the result.

Appellant pleaded guilty to numerous offenses at a general court-martial, and was sentenced to confinement for 10 months, reduction to E-1, and a bad-conduct discharge. Among those offenses were five specifications of making false official statements in violation of Article 107, arising from Appellant’s check-cashing activities at the base exchange. Three of these specifications addressed false statements that Appellant made to Army & Air Force Exchange Service (AAFES) employees, and the other two addressed false statements he made to employees of a bank located within the exchange facility. The statements all involved Appellant’s obscurement of his social security number on his identification card and his presentation of a different person’s social security number when asked for the number (they asked to determine if he had passed bad checks before, which he had).

After Appellant pleaded and was sentenced, CAAF decided the twin Article 107 cases of United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013) (CAAFlog case page), and United States v. Capel, 71 M.J. 485 (C.A.A.F. 2013) (CAAFlog case page), clarifying the circumstances that make a statement “official” for Article 107 purposes.

On review, the Air Force CCA analyzed Passut’s five statements to determine if they were official statements based on the three types of official statements detailed in Spicer. The CCA set aside the findings of guilty to the two specifications involving the bank employee, finding that the bank was a civilian entity that had no affiliation with the military beyond being a tenant in the exchange facility. However, the CCA affirmed the findings of guilty to the three specifications involving false statements made to the AAFES employees, finding that the civilian AAFES cashiers were performing military functions. Appellant appealed this finding and CAAF granted review 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.

A unanimous CAAF finds that the statements were official, with Judge Stucky writing separately to emphasize his continued disagreement with the reasoning of Spicer (where he dissented). Chief Judge Baker, who wrote for the court in Spicer, explains:

AAFES — which is governed by service regulations and whose profits are fed back into the military — has a closer and more intricate relationship to the armed forces, a relationship sufficient to establish a military function.

Passut, Slip op. at 13. The analytical approach that gets the court to this conclusion is based on the nature of the AAFES system, “a joint, nonappropriated fund instrumentality of the Department of Defense” (slip op. at 9), with a “significant role in maintaining servicemembers’ morale and welfare while also providing essential services” (slip op. at 12), and that makes “millions of dollars in annual contributions and [has] a continuous presence on bases, installations, and other military sites across the world” (slip op. at 12). It has practically nothing to do with the check cashing activities that formed the basis for Appellant’s false statement and for his challenge before CAAF “that cashing a check is not a military function” sufficient to meet the Spicer test. Slip op. at 6.

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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.

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Audio of today’s oral arguments is available at the following links:

United States v. Payne, No. 13-0245/AF (CAAFlog case page): Argument audio.

United States v. Passut, No. 13-0518/AF (CAAFlog case page): Argument audio.

CAAF will hear oral argument in United States v. Passut, No. 13-0518/AF (CAAFlog case page), on Tuesday, October 8, 2013. The case presents a single, simple 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.

Last term, in 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), every judge except Judge Stucky joined Chief Judge Baker in opinions that essentially prohibit Article 107 prosecutions for false statements made to civil authorities investigating civil offenses. In Spicer, Chief Judge Baker explained that a statement may be “official” within the meaning of Article 107 in only three ways:

[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). Appellant Passut pleaded guilty to numerous offenses at a general court-martial, and was sentenced to confinement for 10 months, reduction to E-1, and a bad-conduct discharge. Relevant to this appeal are five specifications of making false official statements in violation of Article 107, in connection with Appellant’s check-cashing activities at the base exchange.

Three of these specifications address false statements that Appellant made to Army & Air Force Exchange Service (AAFES) employees, and the other two address false statements he made to employees of a bank located within the exchange facility. The statements all involved Appellant’s obscurement of his social security number on his identification card and his presentation of a different person’s social security number when asked for the number (they asked in order to determine if he had passed bad checks in the past).

Applying Spicer and Capel, the Air Force CCA set aside the findings of guilty to the two specifications involving false statements made to the employees of the bank, finding that the bank was a civilian entity that had no affiliation with the military beyond being a tenant in the exchange facility. However, the CCA affirmed the findings of guilty to three specifications involving false statements made to the AAFES employees. The court applied precedent that found that an AAFES store detective investigating a military member for shoplifting is acting as an “instrument of the military” and is required to give Article 31 rights warnings, and concluded:

[W]e find the AAFES cashiers were civilians “performing military functions” at the time the appellant made his false statements, and those false statements affected those military functions. We also find the appellant admitted to sufficient facts to establish this element. He agreed AAFES existed on every military base to provide services to military members and dependents and worked closely with the military in doing so. He also agreed the AAFES cashiers’ duties included ensuring individuals like himself did not write bad checks at an AAFES facility as they operated the cash registers and accepted payments. We recognize that the military judge told the appellant AAFES was “not quite so much a military organization” and the appellant stated these employees were performing a “governmental-like function” when dealing with him instead of using the “military function” language from Spicer. However, when the totality of the guilty plea inquiry is considered in context, we do not find this to be a substantial basis in law or fact requiring the rejection of his guilty plea as improvident.

United States v. Passut, 72 M.J. 597, 603-04 (A.F.Ct.Crim.App. 2013) (citation omitted). The Government did not appeal the CCA’s decision about the statements made to the bank employees, so CAAF’s review will be limited to the statements to the AAFES employees and whether the CCA correctly determined that these statements were “official.”

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AFCCA yesterday issued this published opinion fleshing out CAAF’s recent guidance on officiality for Article 107 purposes.  United States v. Passut, __ M.J. __, No. ACM 37755 (A.F. Ct. Crim. App. Apr. 16, 2013).  AFCCA held that due to AAFES’s status as a military instrumentality, a false statement made to an AAFES shopette cashier for the purpose of cashing a worthless check is official.  But a false statement made to an employee of a civilian bank located at a military exchange complex is not.

Judge Hecker wrote for a unanimous panel.

[Insert familiar disclosure here.]