CORE CRIMINAL LAW SUBJECTS: Crimes: Article 107 - False Official Statements

2013 (September Term)

United States v. Passut, 73 M.J. 27 (for the offense of making false official statements under Article 107, UCMJ, official statements are those that affect military functions, a phrase derived from Supreme Court case law, and which encompasses matters within the jurisdiction of the military departments and services; these include statements based on the standpoint of the speaker, either acting in the line of duty or concerning matters directly related to the speaker’s official military duties; these also include 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). 

(for purposes of making a false official statement under Article 107, UCMJ, appellant, who lied to a civilian AAFES employee about his social security number and damage to his CAC card when he was writing personal checks for groceries and cash, was not performing a military duty; however, the hearer, a civilian AAFES employee cashing checks, qualified as a civilian necessarily performing a military function; Article 107, UCMJ, is intended to protect the integrity of governmental functions, specifically military functions, and AAFES is a joint, nonappropriated fund instrumentality of DoD that is governed by service regulations and whose profits are fed back into the military; as such, it has a relationship to the armed forces sufficient to establish a military function; accordingly, an AAFES employee cashing appellant’s check was performing a military function and statements made to that employee qualified as official statements for the purposes of Article 107, UCMJ). 

2012 (September Term)

United States v. Capel, 71 M.J. 485 (a statement for purposes of Article 107 could be considered official when it fell into one of three categories:  (1) where the speaker makes a false official statement in the line of duty or the statement bears a clear and direct relationship to the speaker’s official duties; (2) where the listener is a military member carrying out a military duty at the time the statement is made; or (3) where the listener is a civilian who is performing a military function at the time the speaker makes the statement).

(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; 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).    

(in this case, appellant’s statements to a civilian police detective denying that he had used another servicemember’s debit card were not official statements to support a conviction for making false official statements under Article 107, UCMJ, where appellant’s appearance at the civilian police station and his subsequent statements to the detective were not pursuant to any specific military duties on appellant’s part and where there was nothing in the record to indicate that at the time appellant made the statements, the detective was acting on behalf of military authorities or that he was in any other way performing a military function; 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). 

United States v. Spicer, 71 M.J. 470 (the essential elements for the false official statement offense are: (1) that the accused signed a certain official document or made a certain official statement; (2) that the document or statement was false in certain particulars; (3) that the accused knew it to be false at the time of signing it or making it; and (4) that the false document or statement was made with the intent to deceive). 

(Article 107, UCMJ, barring false official statements, applies to statements affecting military functions, a phrase which encompasses matters within the jurisdiction of the military departments and services; this 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; and a matter must affect a military function at the time 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). 

(the purpose of Article 107, UCMJ, derived from a parallel understanding of its civilian counterpart, 18 U.S.C. § 1001 (2006), is to protect the authorized functions of the military from the perversion which might result from the deceptive practices described in the context of § 1001). 

(to determine whether a false statement is official, or capable of perverting authorized military functions, the critical distinction is 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; 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; 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, in this case 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). 

(in this case, appellant’s false statements to civilian law enforcement officials about a purported kidnapping of his infant son were not official in light of the purposes of Article 107, UCMJ; appellant did not make the statements in the line of duty; he did not disobey a specific order to provide for his family, and the statements did not bear a clear and direct relationship to his official duties; furthermore, while appellant’s statements ultimately affected on-base persons performing official military functions, appellant made the statements to civilian law enforcement officials who were not conducting any military function at the time the statements were made; and when appellant made the statements, the civilian law enforcement officials were not operating a joint investigation with military officials or performing any other military functions). 

2008 (Transition)

 

United States v. Day, 66 M.J. 172 (the meaning of “official” in Article 107 has been analogized with the language of its federal analogue, 18 U.S.C. § 1001, prohibiting any false statement made concerning “any matter within the jurisdiction of any department or agency of the United States,” as interpreted liberally by the federal courts; at the same time, Article 107 and 18 U.S.C. § 1001 are not perfectly congruent; the scope of Article 107 is more expansive than its civilian counterpart, because the primary purpose of military criminal law - to maintain morale, good order, and discipline - has no parallel in civilian criminal law).

 

(the fact that allegedly false official statements were made to a civilian or a military member is not dispositive of their official nature; rather, 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). 

 

(false official statements are not limited to line of duty statements). 

 

(false statements made by appellant to civilian personnel who were members of the base fire department charged with performing an on-base military function were “official” under Article 107, UCMJ, where these personnel were providing on-base emergency services pursuant to the commander’s interest in and responsibility for the health and welfare of dependents residing in base housing over which he exercised command responsibility). 

 

(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; however, in this case, the evidence was not sufficient to conclude that the allegedly false official statements made to an off-base civilian 911 operator were official). 

 

2007

United States v. Wright, 65 M.J. 373 (one element of the offense of making a false official statement requires that the statement be false in certain particulars as opposed to totally false). 

(within the context of the circumstances of this case as set forth in the providence inquiry, appellant’s statement that while loading up the connex boxes, he noticed the computers were missing was false; having said that, he said more than simply that they were absent:  he said that he had no explanation for their absence; of course, this was not literally true when, in fact, he and another soldier had stolen the computers; appellant’s statement also falsely suggested that the computers went missing at a particular time, that is, while he was loading up the connex boxes). 

(appellant’s plea of guilty to making a false official statement was provident, notwithstanding his contention that his statement to an officer investigating the theft of computers – that is, that while he was loading up the connex boxes, he noticed that the computers were not on top of the box anymore -- was true, although misleading; appellant’s statement falsely implied that he had no explanation for the absence of the computers, and that they went missing at a particular time).

2003

United States v. Teffeau, 58 MJ 62 (Article 107, UCMJ, punishes any person subject to the UCMJ, who, with intent to deceive, makes a false official statement knowing it to be false; a statement is "official" if that statement is "made in the line of duty;" the definition of "official" does not mean that the President intended to limit "line of duty" in this context to the meaning those words may have in other, non-criminal contexts; in fact, the Court has recognized that the scope of Article 107, UCMJ, is more expansive than its civilian counterpart, 18 U.S.C. § 1001, because the primary purpose of military criminal law – to maintain morale, good order, and discipline – has no parallel in civilian criminal law).

(statements made by appellant to civilian police officers were official where they concerned an incident and investigation that bore a direct relationship to his military duties and status).

(any absolute rule that statements to civilian law enforcement officials can never be official within the meaning of Article 107, UCMJ, is rejected; any such construction of Article 107, UCMJ, is unreasonably restrictive in light of the unique purposes of Article 107, UCMJ, and military criminal law).

2002

(paragraph 31c(6)(a) expressly provides that a statement is "not an official statement within the meaning of the article" in the absence of an independent duty or obligation to speak, which suggests that it may serve simply as a reflection of case law under Article 107 rather than as a rule of limitation; neither the drafting history, nor any other source, demonstrates that the pertinent language in paragraph 31c(6)(a) was included in the Manual for any purpose other than as an attempt to reflect an interpretation of Article 107 under then-existing case law -- an interpretation that is no longer valid).

United States v. Czeschin, 56 MJ 346 (paragraph 31c(6)(a) does not establish a right that may be asserted by an accused who is charged with violating Article 107).

2000

United States v. Nelson, 53 MJ 319,  (statements to criminal investigators can be prosecuted under Article 107; the court has rejected application of the “exculpatory no” doctrine to Article 107).

(where appellant did not assert at trial that her statement to criminal investigators was not an official statement because she did not have an independent duty or obligation to speak (paragraph 31c(6)(a), MCM), appellant failed to preserve that issue for appellate review).

United States v. Reed, 54 MJ 37 (viewing evidence as a whole, Court finds evidence of larceny and false official statements legally sufficient where the evidence showed that appellant stole a modem and then engaged in an elaborate cover-up after the modem was discovered to be missing).


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