United States v. Passut

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.