U.S. v. Passut, 73 M.J. 27

Core Criminal Law Subjects: Crimes: Article 107 - False Official Statements Pre-2019 offenses

1. 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
2. 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

Trial Stages: Merits: Guilty Pleas

1. as a matter of law and fact, a military judge did not abuse his discretion in accepting appellant’s guilty plea to violating Article 107, UCMJ, where appellant admitted making false statements to civilian AAFES employees about his social security number and damage to his CAC card when he was writing personal checks for groceries and cash, because (1) AAFES has a relationship to the armed forces sufficient to establish a military function, and as such, AAFES employees cashing appellant’s checks were performing a military function and statements made to those employees qualified as official statements for the purposes of Article 107, UCMJ, and (2) during the providence inquiry, appellant agreed with the military judge that AAFES served a military function and that the civilian AAFES employees he lied to were performing that function in cashing his checks; given appellant’s admissions, he agreed to sufficient facts to establish the official element of Article 107, UCMJ

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion; a ruling based on an erroneous view of the law constitutes an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea