United States v. Spicer

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.
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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.

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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.”

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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.”).
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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.”).
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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 . . . .
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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
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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.

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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).

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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