United States v. Spicer , 71 M.J. 470 ( 2013 )

UNITED STATES, Appellee
v.
David G. SPICER JR., Private First Class
U.S. Army, Appellant
No. 12-0414
Crim. App. No. 20090608
United States Court of Appeals for the Armed Forces
Argued October 10, 2012
Decided February 6, 2013
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed
a dissenting opinion.
Counsel
For Appellant: Major Daniel E. Goldman (argued); Lieutenant
Colonel Jonathan F. Potter and Frank J. Spinner, Esq. (on
brief); Captain E. Patrick Gilman, Captain Matthew T. Grady,
Captain Kristin McGrory, and Captain James S. Trieschmann Jr.
For Appellee: Captain Steve T. Nam (argued); Lieutenant Colonel
Amber J. Roach (on brief); Major Robert A. Rodrigues and Captain
Frank E. Kostik Jr.
Military Judges: Debra L. Boudreau and Michael J. Hargis
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Spicer, No. 12-0414/AR
Chief Judge BAKER delivered the opinion of the Court.
A general court-martial composed of members was convened in
Fort Carson, Colorado. Contrary to his pleas, Appellant was
convicted of two specifications of making a false official
statement,1 and two specifications of child endangerment,2 in
violation of Articles 107 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 907, 934 (2006). The adjudged and
approved sentence included a dishonorable discharge, confinement
1
The specific offenses were:
Charge I: Violation of the UCMJ, Article 107
Specification 1: In that PFC David G. Spicer, Jr., U.S.
Army, did, at or near Colorado Springs, Colorado on or
about 24 July 2008, with intent to deceive, make to
Detective John W. Koch, Colorado Springs Police Department,
an official statement, to wit: His infant son’s [C.S.’s]
babysitter (Jessica Landing) failed to return his (David G.
Spicer, Jr.’s) son to him and demanded money in exchange
for him, or words to that effect, which statement was
totally false, and was then known by PFC David G. Spicer,
Jr. to be so false.
Specification 2: In that PFC David G. Spicer, Jr., U.S.
Army, did, at or near Colorado Springs, Colorado on or
about 24 July 2008, with intent to deceive, make to
Detective Carlotta Rivera, Colorado Springs Police
Department, an official statement, to wit: He had
witnessed a possible narcotics transaction and the alleged
drug dealers subsequently kidnapped his son, [C.S.],
threatening to kill him [C.S.] if he, David G. Spicer, Jr.,
failed to meet their demands, or words to that effect,
which statement was totally false, and was then known by
PFC David G. Spicer, Jr. to be so false.
2
Appellant pleaded guilty to child endangerment by culpable
negligence, but the Government proved the charged, greater
offense of child endangerment by design.
2
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for ten years, forfeiture of all pay and allowances, and
reduction to pay grade E-1. In a summary disposition, the
United States Army Court of Criminal Appeals affirmed the
findings and the sentence. United States v. Spicer, No. ARMY
20090608, 2012 CCA LEXIS 30, at *4, 2012 WL 346653, at *1 (A.
Ct. Crim. App. Jan. 31, 2012). We granted review on the
following issue:
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE
FINDINGS OF GUILTY OF MAKING FALSE OFFICIAL STATEMENTS
UNDER CHARGE I.
FACTS
From June 17 to July 24, 2008, Appellant left his infant
son, C.S., and toddler son, T.S., in his Fort Carson quarters
without supervision during the duty day. C.S. suffered from
malnourishment and diaper rash, and T.S. was malnourished and
“emotionally injured” because his father “was not caring for him
properly.”
On July 24, 2008, Appellant realized that C.S. was sick
when his neck became swollen and he developed sores on his
fingers. Appellant called the Fort Carson police, but was
transferred to the Colorado Springs 911 operator because he was
located in that jurisdiction when he made the call. Appellant
requested an ambulance, stating that a babysitter had kidnapped
C.S. and had “not tak[en] care of him.” Appellant gave a
statement to Detective John W. Koch of the Colorado Springs
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Police Department (CSPD) at the police station. Appellant
described the babysitter in detail, saying that she had been
caring for his children for several months, first at Appellant’s
residence and then at her home on base. Appellant claimed that
the babysitter had returned C.S. to Appellant after demanding a
ransom and not properly caring for the child. Detective Koch
and CSPD Detective Carlotta L. Rivera had already checked
several databases after Appellant’s initial statement to a
responding patrol officer, and could not locate a record for the
babysitter. Detective Koch expressed skepticism about the
story, but Appellant maintained that he was telling the truth.
During a break in the questioning, Appellant began to speak
with CSPD Detective Rivera outside the interview room. Over the
course of two hours, Appellant began to explain that the
babysitter story was false and had been fabricated by someone
else. Appellant told Detective Rivera that he had witnessed a
drug deal, and that an African American drug dealer had
threatened him. Appellant claimed that to ensure his silence
the drug dealer took C.S. for a two-month period, returning him
only once during that time. The drug dealer also supposedly
instructed Appellant to remove T.S. from day care. According to
Appellant, the drug dealer concocted the story about a
babysitter and told Appellant to fake the kidnapping.
4
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At some point, the police contacted military law
enforcement. About twenty to thirty minutes into their
interview of Appellant, the police asked military law
enforcement to “get involved” because the alleged kidnapping had
occurred on Fort Carson and the babysitter may have been a
servicemember or had some connection to the military. The
police relayed information to CID Special Agent (SA) Christopher
P. Schrock, and worked on a search warrant for Appellant’s base
quarters. SA Schrock watched a portion of Appellant’s interview
through live closed-circuit television. The police asked CID
for assistance to conduct interviews and search Appellant’s
residence. SA Schrock performed interviews on base with a CSPD
detective, and searched military databases for the alleged
babysitter. The CSPD and CID searched the residence, with
military police present for security purposes. After the
search, CSPD left with items of evidence, including a piece of
paper with the alleged babysitter’s name written on it. CID
opened a joint investigation with the CSPD serving as the lead
agency. On July 30, 2008, SA David Simon interviewed Appellant,
who admitted fabricating the stories.
DISCUSSION
Appellant argues that the evidence in this case is legally
insufficient to support the findings of guilty of making false
official statements. This Court reviews questions of legal
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sufficiency de novo. United States v. Winckelmann, 70 M.J. 403,
406 (C.A.A.F. 2011). The test for legal sufficiency is whether,
“considering the evidence in the light most favorable to the
prosecution, any reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States
v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)).
Article 107, UCMJ states:
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.
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.
Manual for Courts-Martial, United States pt. IV, para. 31.b.
(2012 ed.) (MCM); see also Article 107, UCMJ. The element at
issue in this case is whether the evidence was legally
sufficient to find that Appellant’s statements were “official.”
6
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The interpretive challenge is that the element in question
can be read in more than one manner. Moreover, prior case law
has left the matter unsettled. There are at least three
possible ways to interpret the phrase “Any person . . . who
makes any other false official statement . . . .” At its most
expansive, the clause could reach any false statement that is in
some way official, that is, any statement implicating a
military, federal, or state function. At the other extreme, the
clause could be read exclusively from the standpoint of the
person making the statement, in which case, the speaker must be
acting in the line of duty, or the statement must relate to the
speaker’s official duties in order to fall under Article 107,
UCMJ. Finally, the clause could be read to cover statements
that implicate the official acts and functions of the hearer as
well as the speaker. In such a category, the hearer could be a
military member carrying out a military duty or function; a
civilian necessarily performing a military function at the time
the statement is made, such as a base fireman or base 911
operator; or, a civilian performing a civilian function that
would predictably and necessarily require the invocation of or
influence a military function. This Court recognized the
possibility of this latter category in a footnote in Day, but
ultimately did not express a conclusion regarding the reach of
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“official statement.”3 We take the opportunity to do so now, in
part, because it is clear from Day that the law could benefit
from increased clarity.
For the following reasons, we interpret Article 107, UCMJ,
as applying to statements affecting military functions, a phrase
derived from Supreme Court case law, and which encompasses
matters within the jurisdiction of the military departments and
services. United States v. Rodgers, 466 U.S. 475, 478-79 (1984)
(interpreting 18 U.S.C. § 1001’s phrase “within the
jurisdiction” as differentiating “the official, authorized
functions of an agency or department from matters peripheral to
the business of that body”). 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. This also removes any ambiguity suggested by footnote
four in Day; a matter must affect a military function at the
time the statement is made. The putative accused, in other
3
Day, 66 M.J. at 175 n.4 (“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.”).
8
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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.
This conclusion is based on the legislative history as well
as the purpose of Article 107, UCMJ. First, Article 107, UCMJ,
is derived from Articles of War 56 and 57. And, while Article
107, UCMJ, is drafted in a more expansive manner than the
Articles of War, these particular Articles of War were
specifically intended to address the integrity of military
functions, in particular false muster and false returns or
omission to render returns.4 Uniform Code of Military Justice:
Hearings on H.R. 2498 Before a Subcomm. of the H. Comm. on Armed
Servs., 81st Cong. 1229-30 (1949), reprinted in Index and
Legislative History, Uniform Code of Military Justice (1950)
(not separately paginated). In other words, the Articles of War
did not address every false statement, only those pertaining to
military functions.
4
Article of War 57, enacted in National Defense Act Amendments,
ch. 227, 41 Stat. 759, 800 (1920) (“Every officer whose duty it
is to render to the War Department or other superior authority a
return of the state of the troops under his command, or of the
arms, ammunition, clothing, funds, or other property thereunto
belonging, who knowingly makes a false return thereof shall be
dismissed from the service and suffer such other punishment as a
court-martial may direct.”).
9
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The purpose of Article 107, UCMJ, is also derived from a
parallel understanding of its civilian counterpart, 18 U.S.C. §
1001 (2006).5 Thus, in 1955, this Court first looked to § 1001
to determine the meaning of Article 107:
In United States v. Gilliland, the Supreme Court of the
United States held that the purpose of the false statement
statute [§ 1001] is “to protect the authorized functions of
governmental departments and agencies from the perversion
which might result from the deceptive practices described.”
We think that also succinctly states the purpose of Article
107.
United States v. Hutchins, 5 C.M.A. 422, 427, 18 C.M.R. 46, 51
C.M.A. (1955) (citation omitted). This Court’s cases since 1955
have continued to refer to § 1001 by analogy to derive the
purpose and scope of Article 107, UCMJ. United States v.
Dorsey, 38 M.J. 244, 248 (C.M.A. 1993); United States v.
Jackson, 26 M.J. 377, 378 (C.M.A. 1988); United States v.
Davenport, 9 M.J. 364, 370 (C.M.A. 1980). Thus, this Court held
5
18 U.S.C. § 1001(a) (2006), states:
Except as otherwise provided in this section, whoever, in
any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the
United States, knowingly and willfully –-
(1) falsifies, conceals, or covers up by any trick, scheme,
or device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or
fraudulent statement or entry . . . .
10
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that “the word ‘official’ used in Article 107 is the substantial
equivalent of the phrase ‘any matter within the jurisdiction of
any department or agency of the United States’ found in § 1001.”
Jackson, 26 M.J. at 378 (citation omitted) (quotation marks
omitted). Based on the legislative history of Article 107,
UCMJ, and a parallel construction of 18 U.S.C. § 1001, it
follows that the purpose of Article 107, UCMJ, 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. 18 U.S.C. § 1001, in turn, protects the
official functions of the federal government more broadly, while
parallel state statutes would protect state functions.6
Thus, as stated in Day, 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.” Day, 66 M.J. at 174.
6
In the past, this Court’s case law has also described Article
107, UCMJ, as “more expansive” than its civilian counterpart.
United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003)
(citing United States v. Solis, 46 M.J. 31, 34 (C.A.A.F. 1997)).
Our analysis does not rely on such a judgment. On the one hand,
Article 107, UCMJ, could be viewed as more expansive because it
potentially reaches matters affecting good order and discipline,
for which there is no civilian counterpart. On the other hand,
18 U.S.C. § 1001 applies to any agency or department of the
United States, whereas Article 107, UCMJ, addresses only false
official military statements.
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The speaker may make a false official statement “in the line of
duty,” MCM pt. IV, para. 31.c.(1), or to civilian law
enforcement officials if the statement bears a “clear and direct
relationship” to the speaker’s official duties. Teffeau, 58
M.J. at 69. 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.” United States v. Cummings, 3
M.J. 246, 247 (C.M.A. 1977) (citing United States v. Arthur, 8
C.M.A. 210, 211, 24 C.M.R. 20, 21 (1957).
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.7
7
That does not mean that military members are immune from
prosecution for false official statements made to civilian
officials who are not performing military functions at the time.
Rather, it reflects a determination that in a legal context that
includes 18 U.S.C. § 1001, Article 107, UCMJ, and relevant state
law prohibitions on false statements, whether the appropriate
12
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Applying this legal framework to the present facts and in
light of the purposes of Article 107, UCMJ, Appellant’s
statements were appropriately determined to be false, but were
not official. 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 do 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. When Appellant made the statements, the CSPD detectives
were not operating a joint investigation with military officials
or performing any other military functions. Thus, the present
facts do not fall within the meaning of an official statement
for the purposes of Article 107, UCMJ.
Accordingly, we hold that the evidence was not legally
sufficient to support the findings of guilty of making false
official statements under Charge I.
DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed as to Charge I and the specifications
mechanism for charging misconduct is Article 107, UCMJ, or
Article 134(3), UCMJ, will depend on the circumstances.
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thereunder and the sentence. Charge I and its specifications
are dismissed. The remaining findings are affirmed. The record
is returned to the Judge Advocate General of the Army for remand
to the Court of Criminal Appeals for reassessment of the
sentence. Alternatively, a rehearing on the sentence is
authorized.
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STUCKY, Judge (dissenting):
The majority opinion undertakes to define the term
“official statement,” as used in Article 107, UCMJ, 10 U.S.C.
§ 907 (2006), because “the law could benefit from increased
clarity.” United States v. Spicer, __ M.J. __ (8) (C.A.A.F.
2013). 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.
Our duty in interpreting a statute is to implement the will
of Congress, “so far as the meaning of the words fairly
permit[].” Sec. & Exch. Comm’n v. Joiner, 320 U.S. 344, 351
(1943).
As in all statutory construction cases, we begin with
the language of the statute. The first step is to
determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular
dispute in the case. The inquiry ceases if the
statutory language is unambiguous and the statutory
scheme is coherent and consistent.
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quotation
marks and citations omitted). Whether the statutory language is
ambiguous is determined “by reference to the language itself,
the specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v. Shell
Oil Co., 519 U.S. 337, 341 (1997). If the language of the
statute is ambiguous, we may resort to the legislative history
United States v. Spicer, No. 12-0414/AR
“[i]n aid of the process of construction.” United States v.
Great Northern Ry., 287 U.S. 144, 154 (1932).
Article 107 states: “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.”
10 U.S.C. § 907 (2006) (emphasis added). By using the phrase
“or makes any other false official statement,” Congress clearly
expressed its will that the statute be broadly interpreted, see
United States v. Day, 66 M.J. 172, 174 (C.A.A.F. 2008) (citing
United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003)),
and that false official statements are not limited, as the
majority insists, to “statements affecting military functions.”
Spicer, __ M.J. at __ (8).
Even if I were to conclude that the phrase “or makes any
other false official statement” is ambiguous, resort to
legislative history would not change my belief that Article 107
is not restricted to “statements affecting military functions.”
The legislative history of Article 107 is very brief, consisting
of a short commentary by the drafters:
[Article 107] consolidates A.W. 56 and 57. It is
broader in scope in that it is not limited to
particular types of documents, and its application
includes all persons subject to this code.
2
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The article extends to oral statements, and the
mandatory dismissal for officers has been deleted.
Uniform Code of Military Justice: Hearings on H.R. 2498 Before
a Subcomm. of the H. Comm. on Armed Servs., 81st Cong. 1230
(1949), reprinted in Index and Legislative History, Uniform Code
of Military Justice (1950) (not separately paginated).
As noted by the majority, Article 107, UCMJ, is derived
from Articles of War 56 and 57.1 Spicer, __ M.J. at __ (9). The
majority is correct in noting that those “Articles of War were
specifically intended to address the integrity of military
functions.” Id. Article of War 56 prohibited an officer from
knowingly making a false muster. See 41 Stat. at 800. Article
of War 57 prohibited an officer whose duty it was to render a
report on the state of the troops, arms, ammunition, or other
property, from knowingly making a false report. Id. But the
brief and ambiguous legislative history quoted above is hardly a
basis from which to conclude that Congress meant to limit the
scope of Article 107 to “statements affecting military
functions.”
The majority claims that the “purpose of Article 107, UCMJ,
is also derived from a parallel understanding of its civilian
counterpart, 18 U.S.C. § 1001 (2006).” Spicer, __ M.J. at __
(10). Section 1001(a), however, specifically restricts
1
See National Defense Act Amendments, ch. 227, 41 Stat. 759, 800
(1920).
3
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criminality for false statements to those made “in any matter
within the jurisdiction of the executive, legislative, or
judicial branch of Government of the United States.” Congress
chose not to so limit Article 107. Had it wanted to, it could
easily have done so by adding one word -- military -- between
“false official” and “statement.” Congress knows how to do this
and has done it in other parts of the UCMJ. See, e.g., Article
94(a), UCMJ, 10 U.S.C. § 894(a) (2006) (subsection (1) prohibits
one acting in concert with another from refusing to obey orders
with the intent to usurp military authority; subsection
(2) prohibits one, acting in concert with another, from
revolting with intent to overthrow lawful civil authority).
I conclude that Congress intended Article 107 to
criminalize false statements made to civilian law enforcement
agents acting in their official capacity. I would therefore
affirm the judgment of the United States Army Court of Criminal
Appeals.
4