CAAFlog » September 2012 Term » United States v. Capel

The twin Article 107 cases of United States v. Capel, No 12-0320/AF, 71 M.J. 485 (C.A.A.F. Feb. 14, 2013) (CAAFlog case page) (link to slip op.), and United States v. Spicer, No. 12-0414/AR, 71 M.J. 470 (C.A.A.F. Feb. 6, 2013) (CAAFlog case page) (link to slip op.), were argued on the same day last October, during the court’s first week of argument of the term. But despite Capel being argued first, Chief Judge Baker’s opinion could be summarized in two words: See Spicer. In Spicer, decided just one week before Capel, the Chief Judge wrote for a four-judge majority reversing convictions of making false official statements after finding that Article 107 is limited to false “statements affecting military functions.” Spicer, slip op. at 8 (emphasis in original). The same three judges join the Chief Judge in reversing in Capel, with Judge Stucky again dissenting from the analysis.

In my analysis of Spicer, I theorized that the court’s decision “presumably prohibits virtually-all Article 107 prosecutions for false statements to civil authorities investigating civil offenses. . .” Capel convinces me that this is exactly the case, as SrA Capel lied to civil law enforcement officers who were investigating Capel’s thefts from his military superior, and Capel was in uniform at the time he lied, yet CAAF finds that the lies “were not ‘official statements’ for the purposes of Article 107, UCMJ.” (The fact that Capel was in uniform at the time of the false statements isn’t in Chief Judge Baker’s opinion, but it is captured at the bottom of page 4 of Capel’s brief to CAAF).

The majority’s discussion is so short, it’s reproduced here in its entirety:

In United States v. Spicer, __ M.J. __ (C.A.A.F. 2013), we set forth a framework for determining whether an accused’s false statements qualify as official statements for the purposes of Article 107, UCMJ, particularly when such statements are made to civilian authorities. In such a case, an accused may make a false official statement for the purposes of Article 107, UCMJ, if the statement is made “‘in the line of duty,’ or to civilian law enforcement officials if the statement bears a ‘clear and direct relationship’ to the [accused’s] official duties.” Spicer, __ M.J. at __ (12) (citations omitted); United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003). Similarly, the statement at issue may be official for such purposes if the one to whom the statement is made “is a civilian who is performing a military function at the time the [accused] makes the statement.” Spicer, __ M.J. at __ (12). Here, the record is devoid of any evidence to indicate that Appellant’s appearance at the police station and his subsequent statements to Detective Renfroe were pursuant to any specific military duties on Appellant’s part. Likewise, there is nothing in this record to indicate that at the time Appellant made the statements, Detective Renfroe was acting on behalf of military authorities or that he was in any other way performing a military function.

The offense in question occurred off base. Appellant’s command referred him to the local civilian police for resolution of the matter. And, while theft among military personnel can certainly impact unit morale and good order and discipline, it is the relationship of the statement to a military function at the time it is made –- not the offense of larceny itself –- that determines whether the statement falls within the scope of Article 107, UCMJ, as opposed to 18 U.S.C. § 1001 (2006), or an equivalent state statute. Therefore, we hold that Appellant’s statements were not “official statements” for the purposes of Article 107, UCMJ.

Capel, slip op. at 6-7 (footnote omitted). Judge Stucky’s partial dissent (he concurs with the order remanding the case for consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012)) is equally brief:

The plain and clear language of Article 107, Uniform Code of Military Justice (UCMJ), proscribes the making of “any other false official statement.” 10 U.S.C. § 907 (2006). Appellant’s statements to civilian law enforcement agents, investigating allegations of criminal conduct as part of their official duties, were “official statements.” See United States v. Spicer, __ M.J. __ (4) (C.A.A.F. 2013) (Stucky, J., dissenting). Therefore, I would affirm the judgment of the United States Air Force Court of Criminal Appeals (CCA) affirming Appellant’s conviction for making false official statements.

Capel, diss. op. at 1.

Thus, with two short opinions, Article 107 is no longer the reliable fix for a slim charge sheet. That noise you heard? It was from prosecutors everywhere who suddenly cried out in terror, and were suddenly silenced.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument
CAAF opinion
Blog post: Opinion analysis

In addition to Halpin, CAAF has also released two other opinions.

In Clifton, BAKER, C.J., delivered the opinion of the Court, in which RYAN, J., and EFFRON, S.J., joined. ERDMANN, J., filed a separate opinion concurring in part and in the result. STUCKY, J., filed a separate opinion concurring in the result.

On Appellant’s petition, we granted review of the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THE MILITARY JUDGE COMMITTED ERROR BY DENYING A PANEL MEMBER’S REQUEST TO CALL ADDITIONAL WITNESSES FOR QUESTIONING, BUT FOUND THE ERROR TO BE HARMLESS.For the reasons set forth below, and assuming forfeiture rather than waiver, we conclude that the military judge erred, but that the error was not prejudicial.

In Capel, BAKER, C.J., delivered the opinion of the Court, in which ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed a separate opinion concurring in part and dissenting in part.  This audio is here.  Read this case in conjunction with United States v. Spicer.

We also specified the following issue:


Our discussion of this case focuses on the specified issue. We conclude that the statements at issue here are not official for the purposes of Article 107, UCMJ.

U.S. v. Clifton 12-0486/AR (PDF) Feb 14, 2013 xx MJ xxx
U.S. v. Capel 12-0320/AF (PDF) Feb 14, 2013 xx MJ xxx

Audio of the oral argument of United States v. Capel, No. 12-0320/AF, on Wednesday, October 10, 2012, is posted on the court’s website at this link.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio

CAAF’s first week of oral arguments resumes on Wednesday of next week with United States v. Capel, No. 12-0320/AF. CAAF granted review of two issues, the first raised by defense counsel, and the second specified by the court:

I. Whether the lower court misapplied United States v. Fosler and United States v. Watkins in finding that, despite failing to expressly allege the terminal element, the Article 134 specification here states an offense.

II. Whether the evidence is legally sufficient to sustain appellant’s conviction for making a false official statement, Article 107, UCMJ, under this court’s decisions in United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2002), and United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).

Only Issue II was briefed. The facts are that in 2009 the Appellant, a Senior Airman (E-4), spent the night at the home of his friend and supervisor, Staff Sergeant (SSgt) [A]. Soon after, the SSgt observed fraudulent charges on his bank account, and suspected the Appellant. He reported his suspicions to his supervisors, who ordered him to have no contact with the Appellant and to report the crimes to local law enforcement. Subsequently, the Appellant was interrogated by local law enforcement. The Appellant reported to the interrogation in uniform, made a number of false statements during the interrogation, and provided a false written statement. Local authorities ultimately declined to prosecute, but the Appellant was charged and convicted, contrary to his pleas, by a military judge sitting as a special court-martial, of one specification of signing an official document with intent to deceive, two specifications of stealing property of a combined value of $955.99, and three specifications of obtaining services by false pretenses, in violation of Articles 107, 121, and 134, UCMJ. He was sentenced to confinement for six months, forfeiture of $200 pay per month for six months, reduction to E-1, and a bad-conduct discharge. The AFCCA affirmed without specifically considering the question of whether the document signed by the Appellant was an “official” document.

The briefs set out slightly different interpretations of CAAF’s opinions in Teffeau and Day; two seminal false official statement cases. In Teffeau, the court rejected “any absolute rule that statements to civilian law enforcement officials can never be official within the meaning of Article 107.” Teffeau, 58 M.J. at 69. In Day, the court explained that “the critical distinction is not whether the recipient of a statement is civilian or military, but whether the statements relate to the official duties of either the speaker or the hearer, and whether those official duties fall within the scope of the UCMJ’s reach.” Day, 66 M.J. at 174.

In his briefs at CAAF, the Appellant argues that “if those circumstances [leading up to and surrounding the official statement] bear a clear and direct relationship to an accused’s duties and reflect a substantial military interest in the investigation, [only] then an accused’s statements to civilian law-enforcement authorities can be considered official.” Appellant’s Br. at 8-9 (citation and quotation marks omitted). However, the Government advances a much broader interpretation: “a statement can be official when the subject matter of the civilian police investigation is of interest to the military and within the jurisdiction of the courts-martial system.” Gov’t Br. at 6.

The Appellant makes the case that the underlying crimes were not related to his military duties, because he used SSgt [A]’s financial information off duty and off-base (except perhaps one purchase). The Appellant also argues that there was no substantial military interest in the civilian investigation, in part because “the military apparently did not express an interest in the investigation until civilian authorities waived jurisdiction.” Appellant’s Br. at 14.

In turn, the Government argues that the written statement relates to the Appellant’s military duties because of the relationship between him and SSgt [A], his superior and victim, and because of the disruptive effects of the crime on the unit (the no contact order and changes to the unit schedule). It further argues that the “Appellant’s crimes clearly fall within the scope of the UCMJ’s reach” based on his subsequent prosecution. Gov’t Br. at 8.

This isn’t the only case on CAAF’s docket this term that questions the reach of Article 107, a fact that’s particularly relevant considering that the court specified the issue in this case. The court also granted review in United States v. Spicer, No. 12-0414/AR, which involves a conviction for making false official statements to civilian law enforcement officers investigating Spicer’s neglect of his children, based on an assertion of “a soldier’s duty to protect his children from harm.” I discussed Spicer shortly after it was granted in this post. Conveniently, Spicer will be argued immediately after Capel (an argument preview is forthcoming).

Those who know me know that I generally believe that the UCMJ is overbroad for its purpose (or, at least, that it’s utilized in an overbroad fashion), even though I also think that the military justice system is generally better for an accused than a civilian alternative. I was (perhaps unfairly) disappointed that CAAF didn’t issue a stronger opinion last term in United States v. Hayes, 71 M.J. 112, No. 12-0900/AF (C.A.A.F. 2012) (finding that the Government failed to present sufficient evidence to support a conviction for dereliction of duty by violating a custom of the service to obey state-laws regarding drinking age).

I’m not convinced by the Government’s argument in Capel, particularly since I think the Government is subtly trying to expand the reach of Article 107 in its phrasing and application of the relevant legal test for an official statement. As such, I wonder if some of the CAAF judges are contemplating taking a harder line on the scope of the Code this term, beginning with the court’s analysis of the scope of Article 107. I’ll certainly be listening for one during next week’s oral argument.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview