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.

In United States v. Spicer, CAAF analyzed the meaning of “official” in the prohibition against “false official statements” in Article 107 of the UCMJ. The court identified three types of official statements for Article 107 purposes:

[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). Passut is a type-3 case, involving statements made to a civilian employee of AAFES. A type-3 statement “hinges on a critical temporal distinction: the hearer must be performing a military function at the time the statement is made.” Id.

But Passut isn’t decided by a temporal distinction involving Appellant’s false identification and a certain military function. The word “temporal” does not appear in the opinion, nor do any of the three uses of the word “time” relate to this issue. Instead, Passut is decided on a critical status distinction: the nature of AAFES:

Appellant argues that this case should hinge on the nature of the function itself rather than what entity was carrying out that function. Thus, in Appellant’s view, the applicability of Article 107, UCMJ, should not turn on whether the person in question is cashing a check at AAFES 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. Therefore, the unique nature of AAFES and its relationship to the military are integral to the determination of whether its employees perform a military function or not for the purposes of Article 107, UCMJ.

Passut, slip op. at 8 (emphasis added). The next five pages of Chief Judge Baker’s opinion of the court discuss this status distinction in a way that convincingly establishes a symbiotic relationship between AAFES and the military. But that relationship has little to do with the check-cashing function that was the foundation of the prosecution of Appellant.

In a post I wrote after the oral argument in this case, I worried about exactly this outcome:

Consider, if merely the AAFES employee, as an AAFES employee, and due to the nature of AAFES, is enough to make the false statements in connection with the check-cashing in Passut “official,” then what about an AAFES janitor… is a false statement to him (say, when sneaking into the exchange at night on a dare) “official”? Or the clerk processing a return, when a military customer lies about a stain on a shirt (“it was like that when I bought it”)? Or the store manager, when a service member lies on a job application for some off-duty work (“I’ve never been fired before”)? Or a contracted AAFES truck driver delivering a refrigerator when the active duty recipient lies (“sorry, I don’t have any cash for a tip”)? Where’s the limiting principle for “military function?

The answer to all of these hypotheticals is now “yes,” because “AAFES . . . has a closer and more intricate relationship to the armed forces, a relationship sufficient to establish a military function.” Passut, slip op. at 13. And the court’s decision leaves us with no function-based limit to the definition of a “military function” in a type-3 scenario. Rather, the Chief Judge explains that caselaw “define[s] ‘official’ in a manner that encompasses civilians working for an organization or entity serving a military function.” Passut, slip op. at 12. What other organizations or entities will meet this definition in the future is anybody’s guess.

In may respects, CAAF’s decision represents a big step backwards from the clear limits of the meaning of “official” established in Spicer and reinforced in Capel. Article 107 is a favorite charge of prosecutors, as practically any human interaction involves some statement that could qualify as false. By limiting Article 107 prosecutions to only false statements made under a narrowly-defined set of official circumstances, CAAF took a major step in curtailing this broad use of the Article. But by carving out a practically-blanket exception from the Spicer function-test for AAFES, the court is creating a clear opening for the Government to poke additional holes in the Spicer limits.

Judge Stucky dissented in both Spicer and Capel, and he concurs in Passut with a single-paragraph that references his dissent in Spicer, where he wrote:

The majority opinion undertakes to define the term “official statement,” as used in Article 107, UCMJ, because “the law could benefit from increased clarity.” I agree that clarity is desirable. Unfortunately, the majority opinion instead adds more confusion to our admittedly less-than-clear jurisprudence on false official statements.

Spicer, 71 M.J. at 475 (citations omitted). Judge Stucky believed that “Congress clearly expressed its will that the statute be broadly interpreted, and that false official statements are not limited, as the majority insists, to ‘statements affecting military functions.'” Id. at 476 (citations omitted) (emphasis in original). The rest of the court hasn’t joined Judge Stucky’s reasoning in Spicer, but it likely has joined his result in a wide variety of cases where a statement is made to a representative of a civilian organization that can be broadly tied to military interests.

CAAF will undoubtedly have more opportunities to work this out.

Case Links:
AFCCA opinion (72 M.J. 597)
Blog post: Published AFCCA decision on false official statements
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
CAAF argument audio
Blog post: A quick thought about Passut
CAAF opinion
Blog post: Opinion analysis

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