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:
 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.
 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.”
 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.”
Appellant’s brief begins by focusing the issue on the third prong of the three-prong test from Spicer: that a statement to a civilian will only be official “if that civilian is performing a military function at the time the speaker makes the statement.” App. Br. at 5 (citation and marks omitted). Appellant’s argument is that AAFES check cashing activities are simply not military functions. The brief uses Spicer (which involved false statements made to civilian police officers about that appellant’s neglect of his children) to illustrate the difference between a “governmental-like function” and “military functions,” and to describe AAFES as a “government entity” where check cashing is not a “military function.” App. Br. at 7-8. The brief also employs a clever analogy, discussing caselaw holding that “AAFES property is not military property” sufficient to support a finding of guilty to violation of Article 108. App. Br. at 11 (citing United States v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983)). I’m reminded of the observation of the Army CCA, discussing the difference between “government property” and “military property,” that:
The terms are not interchangeable. All government property is not military property; however, all military property is government property.
United States v. Roach, 65 M.J. 866, 870 (A.Ct.Crim.App. 2007). The same can be said of “government functions” and “military functions.”
The Government’s answer focuses on the nature of AAFES, arguing that it “is an instrumentality of the United States” that is “entitled to the immunities and privileges enjoyed by the Federal Government under the Constitution, federal statutes, federal legal precedents, established principles of international law, and international treaties and agreements.” Gov’t Br. at 7. The Government discusses how “the AAFES Board of Directors is comprised of staff from the Air Force and Army and is responsible to the Secretary of the Army and the Secretary of the Air Force,” and notes that “by regulation, commanders are required to “[e]nsure disciplinary actions, when appropriate, are taken against persons who violate patron privileges.” Id.
The Government also addresses the analogy to government/military property, distinguishing the unique class of military property from the question of whether a civilian is performing a military function. Considering the widespread civilianization of traditionally-military functions in recent years (the exchange services being one such function), the Government’s argument has some legs. But 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, it’s unlikely CAAF will now decide to call check-cashing by the civilianized exchange a “military function.” Though, the court may be looking to set an outer limit to Spicer and Capel.
In my opinion analysis of Capel, I wrote that “with two short opinions, Article 107 is no longer the reliable fix for a slim charge sheet.” The charge sheet in this case was hardly slim (Appellant also pleaded guilty to wrongful use of oxycodone, forgery, unauthorized absence, dereliction of duty, making and uttering worthless checks by dishonorably failing to maintain sufficient funds, and falsely altering a military identification card). But if CAAF holds the line – finding perhaps that the AAFES employees were performing government functions but not military functions – the possibility of adding a 107 charge to practically every charge sheet will continue its slide into antiquity.