False Official Statement. MCM, pt. IV, 31; UCMJ art. 107

  1. test1 044 (Side 44)Elements.
      military

    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.
  2. Relation to Federal Statute. Congress intended Article 107 to be construed in parimateria with 18 U.S.C. § 1001. United States v. Jackson , 26 M.J. 377 (C.M.A. 1988); United States v. Aronson , 25 C.M.R. 29 (C.M.A. 1957). The purpose of Article 107 is to protect governmental departments and agencies from the perversion of its official functions which might result from deceptive practices. United States v. Jackson, supra; United States v. Hutchins , 18 C.M.R. 46, 51 (C.M.A. 1955); see generally , TJAGSA Practice Note, The Court of Military Appeals Expands False Official Statement Under Article 107, UCMJ , Army Law., Nov. 1988, at 37. However, Article 107 is more expansive than 8 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.” See United States v. Teffeau , 58 M.J. 62 (C.A.A.F. 2003) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).
  3. Relation to Perjury. The offense of false official statement differs from perjury inthat a false official statement may be made outside a judicial proceeding and materiality is not an essential element. MCM, pt. IV, 3c(3). Materiality may, however, be relevant to the intent of the party making the statement. Id .; see also United States v. Hutchins , 18
  • M.R. 46 (C.M.A. 1955) (accused made a false official statement in connection with aline of duty investigation). Making a false official statement is not a lesser included offense of perjury. United States v. Warble , 30 C.M.R. 839 (A.F.C.M.R. 1960).
  • Meaning of “False.” United States v. Wright , 65 M.J. 373 (C.A.A.F. 2007). While loading equipment for a deployment, the accused and another soldier stole four government computers. An officer investigating the theft of the computers interviewed the accused, who stated: “While loading up the connex’s [ sic ], I noticed that four of the computers weren’t on top of the box anymore.” During the providence inquiry, the accused admitted that his statement was false because it meant that he did not know where the computers went. In fact, the accused knew exactly where the computers were located. The court found that the statement was false for purposes of Article 107 even though it was misleading, but true. The statement falsely implied that he had no explanation for the absence of the computers. The statement also falsely implied that the computers went missing while he was loading up the connex boxes.
  • test1 099 (Side 99)Independent Duty to Account and the Meaning of Officiality.
    1. Formerly, a false statement to an investigator, made by a suspect who had no independent duty to account or answer questions, was not official within the purview of Article 107. United States v. Osborne , 26 C.M.R. 235 (C.M.A. 1958); United States v. Aronson , 25 C.M.R. 29 (C.M.A. 1957); see also United States v. Davenport , 9 M.J. 364, 367-68 (C.M.A. 1980).
    2. Later, the Court of Military Appeals determined that no independent duty to account was required if the accused falsely reported a crime. United States v. Collier , 48 C.M.R. 789 (C.M.A. 1974).
    3. More recently, the court determined that officiality was not dependent upon an independent duty to account or initiation of a report. The focus is on the officiality of the statement—whether an official governmental function was perverted by a false or misleading statement.
      1. United States v. Harrison , 26 M.J. 474 (C.M.A. 1988) (accused’s false statement to battalion finance clerk in order to obtain an appointment for payment violates Article 107).
      2. United States v. Jackson , 26 M.J. 377 (C.M.A. 1988) (misleading information provided by accused about a murder suspect’s whereabouts, voluntarily given to law enforcement agents, constitutes a false official statement).
      3. United States v. Goldsmith , 29 M.J. 979 (A.F.C.M.R. 1990) (untrue responses to a civilian cashier constituted a false official statement).
      4. United States v. Ellis , 31 M.J. 26 (C.M.A. 1990) (anonymous note can constitute a false official statement); see generally TJAGSA Practice Note, An Anonymous Note Can Constitute a False Official Statement , Army Law., Mar. 1991, at 24 (discusses Ellis ).
      5. United States v. Hagee , 37 M.J. 484 (C.M.A. 1993) (making and signing false official duty orders in order to deceive a private party who was entitled to rely on their integrity was a violation of Article 107).
      6. United States v. Dorsey , 38 M.J. 244 (C.M.A. 1993) (lying to investigator about reason for refusing a polygraph held to be an “official” statement).
      7. United States v. Smith , 44 M.J.369 (C.A.A.F. 1996) (falsifying an LES and ID card in order to obtain car loan was violation of Article 107; the official character of a false statement can be based upon its apparent issuing authority rather than the identity of the person receiving it or the purpose for which it is made).
      8. United States v. Bailey , 52 M.J. 786 (A.F. Ct. Crim. App 1999) (when AFOSI agents asked the accused, whom they suspected of threatening victims with guns and whose apartment they intended to search, whether his firearms were in his apartment, there was a clear governmental function underway), aff’d, 55 M.J. 38 (C.A.A.F. 2001).
      9. United States v. Czeschin , 56 M.J. 346 (C.A.A.F. 2002). Paragraph 31c(6)(a) of the Manual for Courts-Martial, which provides that a statement by an accused or suspect during an interrogation is not an official statement within the meaning of Article 107 if that person did not have an independent duty or obligation to speak, does not establish a right that may be asserted by an accused who is charged with violating Article 107. Statements to investigators can be prosecuted as false official statements. (10) United States v. Melbourne , 58 M.J. 682 (N-M. Ct. Crim. App. 2003) (ruling that the language in the pre-2002 editions of the MCM, pt. IV, 31c(6)) is no longer an accurateof law, at least insofar as it would apply tomade to law enforcement agents conductinginvestigations). (11) United States v. McMahon , 58 M.J. 362 (C.A.A.F. 2003) (accused convicted of false official statement for falsifying a certificate awarding himself a Bronze Star). (12) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008). False statements made to on-base emergency medical personnel were official for purposes of Art. 107, but false statements made to an off-base, civilian 911 operator were not.
  • test1 034 (Side 34)Statement to Civilian Law Enforcement Authorities. Official statements includethose made “in the line of duty”. MCM, Part IV, 31c(1). An intentionally deceptive statement made by a service member to civilian authorities may be nonetheless “official” and within the scope of Article 107.
    1. Analysis for Statements to Civilian Authorities.
      1. Duty status at the time of the statement is not determinative. False official statements are not limited those made in the line of duty. Statements made outside of a servicemember’s duties may still implicate official military functions. United States v. Day, 66 M.J. 172 (2008).
      2. The critical distinction is whether the statements relate to the official duties of the speaker or hearer, and whether those official duties fall within the UCMJ’s reach. United States v. Day, 66 M.J. 172 (2008).
      3. The courts have used the following language to link the official duties and the reach of the UCMJ: (a) Statements are official for purposes of Article 107 where there is a “clear and direct relationship to the official duties” at issue and where the circumstances surrounding the statement “reflect a substantial military interest in the investigation.” United States v. Teffeau , 58 M.J. 62 (C.A.A.F. 2003). (b) Statements may be official where there is “a predictable and necessary nexus to on-base persons performing official military functions on behalf of the command.” United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).
    2. Applications of Article 107 to False Statements to Civilian Authorities.
      1. United States v. Day, 66 M.J. 172 (C.A.A.F. 2008). False statements made to on-base emergency medical personnel were official for purposes of Art. 107, but false statements made to an off-base, civilian 911 operator were not.
      2. United States v. Teffeau , 58 M.J. 62 (C.A.A.F. 2003) (accused made false statements to local civilian police concerning an automobile accident in which a delayed-entry recruit was killed; the entire incident and investigation bore a direct relationship to the accused’s duties and status as a recruiter; further, the subject matter of the police investigation was of interest to the military and within the jurisdiction of the courts- martial system).
      3. United States v. Morgan , 65 M.J. 616 (N-M. Ct. Crim. App. 2007) (holding statements to civilian authorities were not “official” for Article 107 purposes).
      4. United States v. Holmes , 65 M.J. 684 (N-M. Ct. Crim. App. 2007) (holding statements to civilian authorities were not “official” for Article 107 purposes).
      5. United States v. Caballero , 65 M.J. 674 (C.G. Ct. Crim. App. 2007) (holding that false statements to civilian police detectives investigating a shooting that had occurred off-post were not official for Article 107 purposes).
  • “Exculpatory No” Doctrine. A number of federal circuit courts apply this doctrine,which stands for the proposition that a person who merely gives a negative response to a law enforcement agent cannot be prosecuted for making a false statement. See generally United States v. Solis , 46 M.J. 31 (C.A.A.F. 1997).
    1. Statutory and constitutional concerns do not support continued application of the doctrine under the UCMJ. United States v. Solis , 46 M.J. 31 (1997); United States v Black , 47 M.J. 146 (1997); United States v. Nelson , 53 M.J. 319 (C.A.A.F. 2000).
    2. The doctrine was traditionally given limited scope under military law, but recent cases placed severe limits on its scope. See United States v. Prater , 32 M.J. 433 (C.M.A. 1991); United States v. Frazier , 34 M.J. 135 (C.M.A 1992); United States v. Sanchez , 39 M.J. 518 (A.C.M.R. 1993).
    3. The doctrine does not apply to false swearing offenses under Article 134, UCMJ. United States v. Gay , 24 M.J. 304 (C.M.A. 1987).
    4. The doctrine has no legitimate statutory or constitutional basis and is not a defense to 18 U.S.C. § 1001. Brogan v. United States , 118 S.Ct. 805 (1998).
  • Multiplicity. See United States v. McCoy , 32 M.J. 906 (A.F.C.M.R. 1991) (findingan accused guilty of violating Articles 107 and 131 when he lied to a trial counsel and the next day told the same lie in court is multiplicious for sentencing only).
  • Unreasonable Multiplication of Charges (UMC). United States v. Esposito , 57 M.J.608 (C.G. Ct. Crim. App. 2002) (finding charging accused with false official statement and obstructing justice by making the same false statement was UMC. Also, charging accused with soliciting a false official statement and obstructing justice by that same solicitation was UMC). 10. Statute of Limitations. Prosecuting an accused for making a false official statement about instances ofmi deviant sexual behavior that occurred outside the five-year statute of limitations for such offenses did not violate his due process rights. United States v. Sills , 56 M.J. 556 (A.F. Ct. Crim. App. 2001), sentence set aside, rehearing granted by, 58 M.J. 23 (C.A.A.F. 2002). 11. Statement. A physical act or nonverbal conduct intended by a soldier as an assertion is a “statement” that may form the basis for a charge of making “any other” false official statement under Article 107. United States v. Newson , 54 M.J. 823 (Army Ct. Crim App. 2001). False Swearing. MCM, pt. IV, 79; UCMJ art. 134. 12. Elements. False swearing is the making, under a lawful oath, of any false statement which the declarant does not believe to be true. United States v. Davenport , 9 M.J. 364 (C.M.A. 1980). The offense of false swearing has seven elements: (1) that the accused took an oath or its equivalent; (2) that the oath or its equivalent was administered to the accused in a matter in which such oath or equivalent was required or authorized by law;
  • that the oath or equivalent was administered by a person having authority to do so, United States v. Hill , 31 M.J. 543 (N.M.C.M.R. 1990); (4) that upon this oath or equivalent the accused made or subscribed a certain statement; (5) that the statement was false; (6) that the accused did not then believe the statement to be true; and (7) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MCM, pt. IV, 79b. It is service discrediting whether it occurs on or off post. United States v. Greene , 34 M.J. 713 (A.C.M.R. 1992). 13. Relation to Perjury. Although often used interchangeably, perjury and false swearing are different offenses. Perjury requires that the false statement be made in a judicial proceeding and be material to the issue. These requirements are not elements of false swearing, which is not a lesser included offense of perjury. See United States v. Smith , 26 C.M.R. 16 (C.M.A. 1958); United States v. Byard , 29 M.J. 803 (A.C.M.R. 1989); United States v. Claypool , 27 C.M.R. 533, 536 (A.B.R. 1958); United States v. Kennedy , 12 M.J. 620 (N.M.C.M.R. 1981); United States v. Galchick , 52 M.J. 815 (A.F. Ct. Crim. App. 2000)(Article 32 investigation is judicial); MCM, pt. IV, 79c(1); but see MCM, pt. IV, 57c(1). The drafters make no attempt to reconcile this provision with the authorities cited above. See MCM, pt. IV, 57 analysis at A23-16 (2002 Ed.). This provision, however, may be reconciled with those authorities if read in light of United States v. Warble , 30 C.M.R. 839, 841 n* (A.F.B.R. 1967) (“We are not called upon to decide whether the Smith case (dealing with Article 131[1] perjury and false swearing, as contrasted with statutory perjury and false swearing) would be held to be in any wise controlling in a statutory perjury charge”)(emphasis in original), aff’d , 30 C.M.R. 386 (C.M.A. 1961); UCMJ art. 131(2). False swearing and perjury should thus be pled in alternative specifications when appropriate. 14. A civilian police officer authorized by state statute to administer an oath may satisfy the element of false swearing that requires that the “oath or equivalent was administered by a person having authority to do so.” The element does not require that the person administering the oath be authorized to do so under Article 136, UCMJ. United States v. Daniels , 57 M.J. 560 (N-M. Ct. Crim. App. 2002). 15. Requirement for Falsity.
    1. The primary requirement for false swearing is that the statement actually be false. MCM, pt. IV, 79c(1). A statement need not be false in its entirety to constitute the offense of false swearing. Id. , Part IV, 79b. See United States v. Fisher , 58 M.J. 300 (C.A.A.F. 2003).
    2. A statement that is technically, literally, or legally true cannot form the basis of a conviction even if the statement succeeds in misleading the questioner. Literally true but unresponsive answers are properly to be remedied through precise questioning. United States v. Arondel De Hayes , 22 M.J. 54 (C.M.A. 1986) (accused lied when he said that the listed items were “missing” as he had an explanation for their absence); United States v. McCarthy , 29 C.M.R. 574 (C.M.A. 1960) (accused’s friends stole some hubcaps which accused allegedly denied during a subsequent investigation).
    3. Doubts as to the meaning of an alleged false statement should be resolved in favor of truthfulness. United States v. Kennedy , 12 M.J. 620 (N.M.C.M.R. 1981) (only certain portions of accused’s statements to a NIS agent were false).
    4. The truthfulness of the statement is to be judged from the facts at the time of the utterance. United States v. Purgess , 33 C.M.R. 97 (C.M.A. 1963) (evidence was insufficient in law to establish that accused made a false statement when accused stated that the seat covers in his car came from a German concern where the evidence showed that they did in fact come from a German concern, albeit by way of government purchase and theft from government stock); see United States v. Arondel De Hayes , 22 M.J. 54 (C.M.A. 1986). 16. Two Witness Rule. The rule is applicable to false swearing. United States v. Yates , 29 M.J. 888 (A.C.M.R. 1989), aff’d, 31 M.J. 380 (C.M.A. 1990); see TJAGSA Practice Note, Judge’s Incorrect Ruling Correctly Affirmed , Army Law., Apr. 1990, at 70 (discussing Yates ). See infra , VII.D.5.a), this chapter. 17. Use of Circumstantial Evidence. United States v. Veal , 29 M.J. 600 (A.C.M.R. 1989); see generally TJAGSA Practice Note, Using Circumstantial Evidence to Prove False Swearing , Army Law., Jan. 1990, at 36 (discusses Veal ); United States v. Hogue , 42 M.J. 533 (A.F. Ct. Crim. App. 1995) (urinalysis result plus expert testimony satisfies direct evidence requirement), aff’d, 45 M.J. 300 (C.A.A.F. 1996). 18. “Exculpatory No” Doctrine. The doctrine is not applicable to false swearing, as the primary concern is the sanctity of the oath. United States v. Gay , 24 M.J. 304 (C.M.A. 1987); see United States v. Tunstall , 24 M.J. 235 (C.M.A. 1987); United States v. Purgess , 33 C.M.R. 97 (C.M.A. 1963); United States v. Kennedy , 12 M.J. 620 (N.M.C.M.R. 1981).

Analysis for Statements to Civilian Authorities.

United States v. Tunstall.