United States v. Passut , 73 M.J. 27 ( 2014 )

UNITED STATES, Appellee
v.
Jordan C. PASSUT, Senior Airman
U.S. Air Force, Appellant
No. 13-0518
Crim. App. No. ACM 37755
United States Court of Appeals for the Armed Forces
Argued October 8, 2013
Decided January 8, 2014
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and EFFRON, S.J., joined. STUCKY, J.,
filed a separate opinion concurring in the result.
Counsel
For Appellant: Major Matthew T. King (argued); Dwight H.
Sullivan, Esq.
For Appellee: Major Rhea A. Lagano (argued); Lieutenant Colonel
C. Taylor Smith and Gerald R. Bruce, Esq. (on brief).
Military Judge: W. Thomas Cumbie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Passut, No. 13-0518/AF
Chief Judge BAKER delivered the opinion of the Court.
A general court-martial composed of a military judge
convicted Appellant, consistent with his pleas, of wrongful use
of oxycodone, making false official statements, 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 in
violation of Articles 112a, 107, 123, 86, 92, and 134 of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 907,
923, 886, 892, 934 (2012). The adjudged and approved sentence
included a bad-conduct discharge, ten months of confinement, and
reduction to grade E-1. The United States Air Force Court of
Criminal Appeals (CCA) set aside and dismissed two
specifications of making false official statements and affirmed
the remaining findings and the existing sentence as reassessed.
United States v. Passut, 72 M.J. 597, 605-06 (A.F. Ct. Crim.
App. 2013).
We granted review on the following issue:
WHETHER A STATEMENT MADE TO AN AAFES EMPLOYEE FOR THE
PURPOSE OF CASHING A WORTHLESS CHECK SATISFIES THE
“OFFICIAL” ELEMENTS OF A FALSE OFFICIAL STATEMENT [CHARGE].
We conclude that the statements made by the Appellant to
the Army and Air Force Exchange Service (AAFES) employees were
official for the purposes of Article 107, UCMJ.
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BACKGROUND
On several occasions in October and November 2009,
Appellant attempted to cash checks at the AAFES shopette at
MacDill Air Force Base in Florida. Each time he used a similar
procedure. The check cashing process required an AAFES employee
to either scan an identification card or enter a Social Security
Number into a database to check for a history of dishonored
checks. Appellant presented his Common Access Card (CAC) to the
civilian AAFES employee. The bar code and Social Security
Number on the back of the card were so severely scratched that
the card could not be scanned and the number was illegible.
Appellant told the employee that the card had been damaged in
the washer and dryer or by a machine at work. In fact,
Appellant had scratched the card himself so that the employee
would not be able to access his record of writing insufficient
checks. Appellant then provided the employee with another
servicemember’s Social Security Number and proceeded to write
checks for groceries and cash back. On other occasions, when
asked by a different AAFES employee for his CAC, Appellant
verbally delivered a false Social Security Number in order to
receive cash back on purchases. Appellant also made similar
statements regarding his Social Security Number and scratched
CAC to a teller at a branch of the Armed Forces Bank, a civilian
bank, located within the AAFES facility.
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Appellant was charged with numerous offenses including
wrongful use of oxycodone, forgery, unauthorized absence,
dereliction of duty, making and uttering worthless checks,
falsely altering a military identification card, and making
false official statements.1 In a stipulation of fact presented
1
The specific offenses at issue are:
Charge II: Violation of the UCMJ, Article 107
Specification 1: In that SENIOR AIRMAN JORDAN C. PASSUT,
United States Air Force, 6th Maintenance Squadron, MacDill
Air Force Base, Florida, did, at or near MacDill Air Force
Base, Florida, on divers occasions between on or about 2
November 2009 and on or about 5 November 2009, with intent
to deceive, make to Ms. Brenda Braaten, an official
statement to wit: my social security number is . . ., or
words to that effect, which statement was totally false,
and was then known by the said Senior Airman Passut to be
so false.
Specification 5: In that SENIOR AIRMAN JORDAN C. PASSUT,
United States Air Force, 6th Maintenance Squadron, MacDill
Air Force Base, Florida, did, at or near MacDill Air Force
Base, Florida, on divers occasions between on or about 25
October 2009 and on or about 5 November 2009, with intent
to deceive, make to Mr. William Rosenblatt, an official
statement, to wit: my social security number is . . ., or
words to that effect, which statement was totally false,
and was then known by the said Senior Airman Passut to be
so false.
Specification 9: In that SENIOR AIRMAN JORDAN C. PASSUT,
United States Air Force, 6th Maintenance Squadron, MacDill
Air Force Base, Florida, did, at or near MacDill Air Force
Base, Florida, on or about 2 November 2009, with intent to
deceive, make to Ms. Brenda Braaten, an official statement
to wit: the Social Security Number on my Common Access
Card is scratched out because the card went through the
washer and dryer, or words to that effect, which statement
was false in that the said Senior Airman Passut
deliberately scratched his ID card using a means other than
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to the military judge, Appellant agreed that the statements to
the AAFES employees had been official statements. The
stipulation stated that the cashier “was an employee of AAFES, a
military organization, and the statements the accused made to
her related to her work duties, namely operating the cash
register and accepting payments.”
The Appellant pled guilty to a number of charges including,
and relevant to this opinion, seven specifications of making
false official statements in violation of Article 107, UCMJ.
Three of these specifications involved statements to AAFES
employees. During the providence inquiry, the military judge
stated that: “The stipulation said that AAFES is a military
organization. It really is not quite so much a military
organization. But it certainly is an organization that exists
on every Air Force base to provide services to military members
and their dependents.” The military judge then asked Appellant
if he agreed that one of AAFES’s duties is to “ensure that the
person for whom they cash a check doesn’t have a bunch of other
bad checks and that sort of thing with the BX.” Appellant
agreed. The military judge went on to ask whether, since AAFES
“work[ed] closely with and provid[ed] services to the military,”
Appellant was “satisfied in [his] own mind that in requesting
a washer or dryer, and was then known by the said Senior
Airman Passut to be so false.
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that information from [him] that they were performing a
governmental-like function.” Again, Appellant agreed.
Appellant was sentenced to ten months of confinement, a
bad-conduct discharge, and reduction to grade E-1. On appeal,
the Air Force Court of Criminal Appeals dismissed two of the
false official statement charges, those made to the bank
employee, on the grounds that “[d]espite its name, this bank is
not affiliated with the military. Unlike the AAFES shopette,
the bank is a civilian entity which only happens to be located
with an AAFES building.” Passut, 72 M.J. at 604. The Court of
Criminal Appeals otherwise affirmed the remaining findings and
the sentence. Id. at 605-06. With respect to the AAFES
charges, the Court found “AAFES remains ‘governmental in nature
and military in purpose’ and ‘under the control of military
authorities.’” Id. at 603 (citation omitted).
Appellant now challenges his Article 107, UCMJ, convictions
on the ground that cashing a check is not a military function
and therefore AAFES, like the Armed Forces Bank, was not
performing a military function for the purposes of Article 107,
UCMJ. Thus, according to Appellant, there is a substantial
basis to question his plea as a matter of law and fact.
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DISCUSSION
A military judge’s acceptance of a guilty plea is reviewed
for an abuse of discretion. United States v. Inabinette, 66
M.J. 320, 322 (C.A.A.F. 2008). A ruling based on an erroneous
view of the law constitutes an abuse of discretion. Id. The
test for an abuse of discretion is whether the record shows a
substantial basis in law or fact for questioning the plea.
United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013).
Article 107, UCMJ, states that: “Any person subject to
this chapter who, with intent to deceive, signs any false
record, return, regulation, order, or other official document,
knowing it to be false, or makes any other false official
statement knowing it to be false, shall be punished as a court-
martial may direct.” Manual for Courts-Martial, United States
pt. IV, para. 31.a. (2012 ed.) (MCM) (emphasis added). In
United States v. Spicer, this Court set out a framework for
determining whether statements qualify as official for the
purposes of Article 107, UCMJ, as distinct from those that might
be charged under 18 U.S.C. § 1001(c) (2012) or state law. 71
M.J. 470 (C.A.A.F. 2013). We found that 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.” Id. at
473. These include statements based on the standpoint of the
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speaker, either acting in the line of duty or concerning matters
directly related to the speaker’s official military duties. Id.
These also include, most significantly for this case:
“[S]tatements 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.” Id. Appellant argues,
and we agree, that Appellant was not performing a military duty
when writing a personal check for groceries and cash at AAFES.
The dispositive question is, therefore, whether the hearer, a
civilian AAFES employee cashing checks, qualifies as a civilian
necessarily performing a military function.
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.
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AAFES is a joint, nonappropriated fund instrumentality of
the Department of Defense (DoD). Dep’t of Defense Dir. 1330.9,
Armed Services Exchange Policy paras. 3.4, 4.1 (Dec. 7, 2005).
Among other things, AAFES generates earnings used to support
Morale, Welfare, and Recreation (MWR) programs for the Armed
Services. Id. at para. 4.1. This same DoD Directive states
that the Armed Services exchange program is “vital to mission
accomplishment and forms an integral part of the non-pay
compensation system for active duty personnel”. Id. The
Exchange is controlled by a board of directors, with board
members established by a joint service regulation and consisting
entirely of individuals affiliated with the Army and Air Force.
Dep’t of the Army, Reg. 15-110/Dep’t of the Air Force, Instr.
34-203(I), Boards, Commissions, and Committees, Board of
Directors, Army and Air Force Exchange Service para. 5 (July 10,
2009). The board is responsible to the Secretaries of the Army
and Air Force through the service Chiefs of Staff. Id. at para.
8. Its duties include determining and approving basic policies
and programs related to AAFES and setting financial plans and
goals. Id.
Though AAFES is not a uniformed military activity, members
of the Armed Forces make the key decisions concerning its
operation and AAFES profits are fed back into the Army and Air
Force in order to fund service-related MWR programs. A joint
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Army/Air Force directive outlines the purpose, objectives,
organization and legal status of AAFES.2 Dep’t of the Army, Reg.
215-8/Dep’t of the Air Force Instr. 134-211(I), Morale, Welfare,
and Recreation, Army and Air Force Exchange Service Operations
(Oct. 5, 2012).
The Army and Air Force also participate in the regulation
of fraud and loss prevention in AAFES facilities. There are
Army and Air Force regulations dictating procedures for cashing
checks in AAFES facilities and for processing dishonored checks.
Id. at paras. 6-11, 6-12. Military personnel who do not make
timely restitution on bad checks are reported to their unit,
garrison, or installation commanders. Id. at para 7-6(b).
Commanders have the authority to suspend or revoke AAFES
privileges and there is a mandatory six-month suspension for
anyone who intentionally presents bad checks. Id. at para. 7-
6(e).
The regulatory conclusion that AAFES supports and performs
a governmental and military function is further supported in
case law. In 1942, the United States Supreme Court determined
2
AAFES is an instrumentality of the United States, entitled to
the immunities and privileges shared by the federal government
under the Constitution, federal statutes, federal legal
precedents, established principles of international law, and
international treaties and agreements. Dep’t of the Army, Reg.
215-8/Dep’t of the Air Force Instr. 134-211(I), Morale, Welfare,
and Recreation, Army and Air Force Exchange Service Operations
para. 1-11(a). (Oct. 5, 2012).
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that the exchange was a government entity. It stated that post
exchanges were the “arms of Government deemed by it essential
for the performance of governmental functions.” Standard Oil
Co. of Cal. v. Johnson, 316 U.S. 481, 485 (1942).
This Court has also held that an AAFES store detective’s
duties were sufficiently military in nature as to require
Article 31, UCMJ, 10 U.S.C. § 831, rights warning. United
States v. Ruiz, 54 M.J. 138, 140-41 (C.A.A.F. 2000); United
States v. Baker, 30 M.J. 262, 266-67 (C.M.A. 1990); United
States v. Quillen, 27 M.J. 312, 314-15 (C.M.A. 1988). In
Quillen, we found that an AAFES store detective was required to
advise a suspect of his rights under Article 31, UCMJ, before
questioning him about shoplifting. 27 M.J. at 314. The
decision was based on the fact that the store investigator “in a
very real and substantial sense acted as an instrument of the
military” and that the organization that employed her (AAFES)
and directed her actions was under the control of military
authorities. Id. A store detective at a base exchange was
therefore not a private employee but rather had assumed duties
that were “governmental in nature and military in purpose.” Id.
In addition, in United States v. Day, this Court determined
that false statements made to civilian firemen who were members
of a base fire department qualified as false official
statements. 66 M.J. 172, 175 (C.A.A.F. 2008). The fact that
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statements were made to a civilian or military member was not
essential in determining their official nature. Rather, the
critical distinction was “whether the statements related 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.” Id. at 174.
In counterpoint, this Court ruled in both Spicer and United
States v. Capel that statements made to civilian police officers
were not official statements for the purpose of Article 107,
UCMJ. Spicer, 71 M.J. at 475; United States v. Capel, 71 M.J.
485, 487 (C.A.A.F. 2013). The statements in question were not
pursuant to any military duties on the appellant’s part, nor
were the civilian police officers acting in conjunction with or
on behalf of military authorities at the time the statements
were made. Spicer, 71 M.J. at 475; Capel, 71 M.J. at 487.
In short, these cases define “official” in a manner that
encompasses civilians working for an organization or entity
serving a military function. AAFES, through millions of dollars
in annual contributions and a continuous presence on bases,
installations, and other military sites across the world, plays
a significant role in maintaining servicemembers’ morale and
welfare while also providing essential services. As such, the
organization and its employees clearly serve a military function
for the purposes of Article 107, UCMJ.
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As a result, Appellant’s argument that the act of cashing a
check at AAFES is no different than doing the same at the Armed
Forces Bank is not persuasive. The critical distinction between
military and civilian highlighted in Spicer and Day is evident
here and is well illustrated by the factual distinctions between
the Article 107, UCMJ, charges in this case as found by the CCA.
The Armed Forces Bank is a privately owned bank that caters to
members of the military but, unlike AAFES, the Army and Air
Force are in no way involved in the management, operations, or
setting of policies. Neither do the bank’s earnings accrue to
the benefit of service personnel. See id. Although Appellant
is a member of the military, he was not acting in that capacity
when attempting to cash his personal check at the bank. The
teller was a civilian as well. Aside from the bank branch’s
physical presence on the base, nothing here hinted at a military
function. In contrast, 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.
Therefore, we hold that the AAFES employee cashing
Appellant’s check was performing a military function and that
statements made to that employee qualify as official statements
for the purposes of Article 107, UCMJ. As a result, as a matter
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of law, the military judge did not abuse his discretion in
accepting Appellant’s guilty plea to violating Article 107,
UCMJ.
We also conclude that that the military judge did not abuse
his discretion in accepting the plea as a matter of fact.
During the providence inquiry, Appellant agreed with the
military judge’s statement that AAFES “is not quite so much a
military organization. But it certainly is an organization that
exists on every Air Force base to provide services to military
members and their dependents.” He also concurred when the
military judge asked if, since the AAFES employees “work closely
with and provide services to the military, are you satisfied in
your own mind that in requesting that information from you that
they were performing a governmental-like function?” In
addition, in the stipulation of fact, Appellant stipulated that
both of the cashiers to whom Appellant had provided a false
Social Security Number, Ms. Braaten and Mr. Rosenblatt, were
employees “of AAFES, a military organization, and the statements
the accused made to him [her] related to his [her] work duties,
namely operating the cash register and accepting payments.”
Given these admissions, we also find that Appellant agreed to
sufficient facts to establish the official element of Article
107, UCMJ.
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DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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STUCKY, Judge (concurring in the result):
Appellant’s statements to an AAFES civilian cashier cashing
his check were false official statements within Article 107,
UCMJ, 10 U.S.C. § 907 (2012), under either the majority opinion
or my dissent in United States v. Spicer, 71 M.J. 470, 475–76
(C.A.A.F. 2013) (Stucky, J., dissenting). In this case, the
AAFES cashier was performing an official function under
government authority and pursuant to government regulations when
she cashed Appellant’s check. That is all that is required. I
concur in affirming the judgment of the United States Air Force
Court of Criminal Appeals.