United States v. Capel , 71 M.J. 485 ( 2013 )

UNITED STATES, Appellee
v.
Chadrick L. CAPEL, Senior Airmen
U.S. Air Force, Appellant
No. 12-0320
Crim. App. No. S31819
United States Court of Appeals for the Armed Forces
Argued October 10, 2012
February 14, 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 separate
opinion concurring in part and dissenting in part.
Counsel
For Appellant: Major Matthew T. King (argued); Captain Shane M.
McCammon (on brief).
For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).
Military Judge: David S. Castro
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Capel, No. 12-0320/AF
Chief Judge Baker delivered the opinion of the Court.
Appellant was tried by a military judge sitting as a
special court-martial. Contrary to his pleas, he was convicted
of signing a false official document, two specifications of
larceny, and three specifications of obtaining services by false
pretenses, in violation of Articles 107, 121, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921, 934
(2006), respectively. The adjudged and approved sentence
included a bad-conduct discharge, confinement for six months,
forfeiture of $200 pay per month for six months, and reduction
to pay grade E-1. The United States Air Force Court of Criminal
Appeals affirmed. United States v. Capel, No. ACM S31819, 2011
CCA LEXIS 367, at *19, 2011 WL 6372876, at *6 (A.F. Ct. Crim.
App. Dec. 16, 2011).
We granted review on the following issue raised by
Appellant:
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.
We also specified the following issue:
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
DECISION 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).
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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.1
BACKGROUND
On August 23, 2009, Appellant went to Staff Sergeant (SSgt)
Troy Addison’s home to play video games and have a few drinks.
Having had too much to drink, Appellant slept on a recliner in
SSgt Addison’s living room. According to SSgt Addison, he left
his wallet with his debit card on his kitchen counter. When he
awoke the next morning Appellant was gone.
Several days later, SSgt Addison checked his banking
account information online and noticed transactions that he did
not recognize with six different businesses at which he had not
used his card. The unauthorized charges totaled $2100.00. SSgt
Addison recalled that Appellant had spent the night six days
earlier and had access to his wallet and debit card. Suspecting
Appellant, SSgt Addison called Verizon Wireless, where one of
the unauthorized transactions had occurred. He provided the
operator with Appellant’s phone number and asked if there had
1
The granted issue relates to the three specifications under
Charge III alleging violations of Article 134, UCMJ. In light
of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we
remand this issue to the Air Force Court of Criminal Appeals for
a prejudice analysis.
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been a recent payment on the account. The operator verified
that the amount of Appellant’s phone bill matched the dollar
amount charged to SSgt Addison’s debit card.
SSgt Addison first reported these offenses to his “shop
chief” who “contacted the [first sergeant].” They told SSgt
Addison to cease contact with Appellant and to “go downtown and
file an official report.” SSgt Addison proceeded to the
Valdosta Police Department and filed a complaint. He also filed
a complaint with Bank of America, his checking account holder.
The Valdosta police initiated an investigation into SSgt
Addison’s complaint and found that Appellant had used SSgt
Addison’s debit card to pay for bills and make purchases at a
variety of online stores. Detective Robert L. Renfroe spoke
with Appellant by telephone and arranged an interview. During
the interview with Detective Renfroe, Appellant waived his
rights, made several exculpatory statements and ultimately
denied using SSgt Addison’s debit card. Additionally, Appellant
signed a written statement that contained the following, “I did
not under any circumstances use his card for any purpose.”2
2
The specification at issue alleged the following:
Specification: In that SENIOR AIRMAN CHADRICK L. CAPEL . .
. did, at or near Valdosta, Georgia, on or about 3 December
2009, with intent to deceive, sign an official document, to
wit: A Valdosta Police Department Witness Statement, where
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Later, Appellant surrendered himself to civilian authorities and
was detained overnight. At some point, civilian authorities
decided not to prosecute Appellant. The record does not
indicate when Detective Renfroe notified the Air Force Office of
Special Investigations or other military authorities, or whether
he notified them at all.
At his court-martial, Appellant testified that he never
used SSgt Addison’s debit card number without authorization and
again stated that SSgt Addison had agreed to pay his bills for
him. He further claimed that SSgt Addison had agreed to
purchase a laptop computer for him in exchange for a PlayStation
3 game console, helped him select a Toshiba Satellite laptop
from BestBuy.com, and gave him his debit card number over the
phone for payment.
SSgt Addison, on the other hand, testified that although he
had lent cash to Appellant in the past, he never used his debit
card to pay for Appellant’s bills. Specifically, SSgt Addison
stated that he had not paid for a laptop from BestBuy.com, or
paid a water bill, a cable bill, or a cell phone bill on
Appellant’s behalf. SSgt Addison also testified that he never
the said SENIOR AIRMAN CHADRICK L. CAPEL claimed that he
never used the debit card of Staff Sergeant Troy Addison,
which document was totally false and was then known by the
said SENIOR AIRMAN CHADRICK L. CAPEL to be false.
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used his debit card to make these payments or purchases for
Appellant. The members resolved this apparent conflict against
Appellant and he was convicted.
DISCUSSION
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.3 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
3
Specifically, in Spicer, we determined that a statement could
be considered official when it fell into one of three
categories: (1) where the speaker “make[s] 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.” __ M.J.
at __ (12) (internal quotation marks and citations omitted).
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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.
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DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Charge I and the
specification thereunder, and as to Charge III and the
specifications thereunder. Charge I and its specification are
dismissed. The findings of guilty to Charge II and the
specifications thereunder are affirmed. The record of trial is
returned to the Judge Advocate General of the Air Force for
remand to the Court of Criminal Appeals for a determination of
whether Appellant has demonstrated prejudice in light of United
States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), with respect
to the specifications under Charge III, and if appropriate, for
reassessment of the sentence. If necessary, a rehearing may be
authorized.
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STUCKY, Judge (concurring in part and dissenting in part):
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.
I concur in setting aside the judgment of the CCA with
respect to Charge III and its specifications and remanding for
further consideration in light of United States v. Humphries, 71
M.J. 209 (C.A.A.F. 2012).