United States v. Passut

73 M.J. 27, 2014 WL 67758, 2014 CAAF LEXIS 27
CourtCourt of Appeals for the Armed Forces
DecidedJanuary 8, 2014
Docket13-0518/AF
StatusPublished
Cited by28 cases

This text of 73 M.J. 27 (United States v. Passut) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Passut, 73 M.J. 27, 2014 WL 67758, 2014 CAAF LEXIS 27 (Ark. 2014).

Opinions

Chief Judge BAKER

delivered the opinion of the Court.

A general court-martial composed of a military judge convicted Appellant, consistent [28]*28with 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-l. 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.

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 cheek cashing process required an AAFES employee to either scan an identification card or enter a Social Security Number into a database to cheek 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 cheeks 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.

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 [29]*29stipulation of fact presented 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 provided] services to the military,” Appellant was “satisfied in [his] own mind that in requesting 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-l. 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.

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 [30]*30of the military departments and services.” Id. at 473. 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. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
73 M.J. 27, 2014 WL 67758, 2014 CAAF LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-passut-armfor-2014.