United States v. Prater

30 M.J. 785, 1990 CMR LEXIS 307, 1990 WL 43787

• Court: U.S. Army Court of Military Review
• Decided: March 30, 1990
• Docket: ACMR 8800576
• Status: Published

Opinions

OPINION OF THE COURT ON RECONSIDERATION

KUCERA, Senior Judge:

On 26 May 1989, in a published opinion, this court affirmed the findings of guilty in appellant’s case with one exception. A portion of appellant’s conviction of larceny was found to be barred by a three-year statute of limitations. Based on this error we reassessed the sentence, affirming in its entirety that sentence approved by the convening authority. United States v. Prater, 28 M.J. 818 (A.C.M.R.1989), vacated by unpub. order, 5 Sept. 1989 [hereinafter Prater I].

One of the alleged errors resolved against appellant in that decision involved the providence of his guilty plea to making a false official statement (Specification 3 of Charge II). Appellant asserted that the military judge erred by accepting his plea without inquiring into the “exculpatory no” defense. Citing, inter alia, United States v. Rodgers, 466 U.S. 475, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984), and United States v. Jackson, 26 M.J. 377 (C.M.A.1988), this court declined “to extend the ‘exculpatory no’ defense to circumstances where a suspect makes a properly warned statement to those investigating his alleged crimes.” Prater I, 28 M.J. at 820 (footnote omitted).

Appellant, following publication of Prater I, timely petitioned this court for reconsideration of its decision as to the scope of the “exculpatory no” defense. He argued that “this Court ... [had] departed from binding precedent” in not applying the ‘exculpatory no’ defense” to his circumstances. We granted the petition over appellate government counsel’s opposition, vacating our prior decision and, in essence, we agreed with appellant on reconsideration. United States v. Prater, ACMR 8800576 (A.C.M.R. 15 Nov. 1989) (unpub.), vacated by unpub. order, 14 Dec. 1989 [hereinafter Prater II].

On 4 December 1989, appellate government counsel requested that we once again reconsider our opinion, stating that our opinion on reconsideration in Prater II was overbroad. We granted the government’s petition, vacating our decision in Prater II on reconsideration.

The appellant Prater and his putative wife Joyce met in 1981. Subsequently, from 1 February 1983 until at least June of 1987, they lived together and held themselves out as husband and wife. While some of Prater’s acquaintances suspected that the Praters were not married to each other, appellant claimed Joyce as his wife and received basic allowance for quarters at the “with dependent” rate and other entitlements based on the dependency status of Joyce as appellant’s wife.¹ All along, however, the appellant knew that Joyce was not his wife. A stipulation of fact admitted at trial in part states that:

Prior to 1 February 1983, the accused discovered that the woman whom he had married had, in fact, been previously married to another and continued to be so married. This woman left the accused shortly after making this fact known to him. He ceased to support her at that point. Upon his purported marriage to her, he had applied for and began to receive Army pay benefits arising from his alleged status as married with a dependent wife. At the time he applied for these benefits he believed himself to be entitled to them. Upon discovering that his marriage was bigamous, the accused realized that his marriage was invalid and that he had no dependents for Army pay purposes. The accused took no steps to alert the Army to this fact. Knowing that he was not entitled to them, the accused continued to collect Army benefits ... on the false premise that he was married and had a dependent. These benefits included payments of [Basic Allowance for Quarters], [Variable Housing Allowance], Family Separation Allowance, and Dependent Travel/Dislocation Allowance.

Rather than following accepted legal procedures to satisfactorily resolve his marital status, the appellant and his putative wife attempted to ensure that their meretricious relationship was not discovered by the Army.

The deception worked until April 1987 when Joyce was sexually assaulted and was taken by the appellant and Joyce’s friend to a hospital for treatment. There, the appellant signed an emergency card listing Joyce as his wife. At that time, Joyce’s friend observed that Joyce had two military identification cards (ID), each bearing a different name.² That information was given to military authorities investigating the sexual assault. With other information gathered during that investigation, it led the investigators to question the appellant whether in fact he and Joyce were married. Responding to the investigators’ questions, on 18, 19, and 21 May 1987, the appellant falsely maintained to them that indeed, he and Joyce were married. These three statements formed the basis for the false official statement charged. Now the appellant asserts, inter alia, that

THE MILITARY JUDGE ERRED BY ACCEPTING [HIS] PLEA OF GUILTY TO FALSE OFFICIAL STATEMENT (SPECIFICATION 3 OF CHARGE II) WITHOUT INQUIRING INTO THE “EXCULPATORY NO” DEFENSE.

In United States v. Aronson, 25 C.M.R. 29 (C.M.A.1957), the Court of Military Appeals held that there is a general analogy between Article 107 of the Uniform Code of Military Justice, 10 U.S.C. § 907 (1982) [hereinafter UCMJ] and Section 1001, 18 U.S.C. § 1001 (1982). Since that time, the appellate courts have, consistent with federal decisions, recognized the “exculpatory no” defense in circumstances where a suspect makes a false statement to an investigator, but has no independent duty to answer questions or to make an account. However, in United States v. Jackson, 22 M.J. 643 (A.C.M.R.1986), aff'd, 26 M.J. at 377, the scope of the defense was restricted. Jackson holds that, even if not subject to an independent duty to account, a servicemember who lies to a law enforcement agent conducting an official investigation does so in violation of UCMJ art. 107. The Court of Military Appeals ruled that UCMJ art. 107 should be broadly construed consistent with United States v. Rodgers, 466 U.S. at 475, 104 S.Ct. at 1942. In Rodgers, the United States Supreme Court noted that there is a valid legislative interest in protecting the integrity of official inquiries. The Court further noted that a statutory basis for an agency’s request for information provides jurisdiction enough to punish fraudulent statements under Section 1001. See also Bryson v. United States, 396 U.S. 64, 70-71, 90 S.Ct. 355, 359-360, 24 L.Ed.2d 264 (1969).

Jackson shifted the focus from the “duty to account” to the “officiality of the investigation.” It expanded the potential reach of UCMJ art. 107 to include statements that impede governmental functions regardless of a duty to account; concomitantly, it diminished the “exculpatory no” defense. See generally Milhizer, The Court of Military Appeals Expands False Official Statement under Article 107, UCMJ, The Army Lawyer, Nov. 1988, at 38-40.

We find that, as part of an official investigation into allegations of sexual assault against appellant’s putative wife Joyce, the government authorities had a right to determine whether appellant and Joyce were married to each other. The validity of appellant’s marriage was at the core of the government’s responsibility for providing benefits to the appellant and his dependent wife Joyce. The appellant and his wife would not have been entitled to such benefits unless they in fact were legally married to each other.³

During the providence inquiry the appellant admitted that he was a suspect and was warned of his rights by the investigators. His choices then were not to speak at all or to speak truthfully. For as long as the government was footing the bill for the benefits that he and his putative wife Joyce continued to enjoy, the government had a right to inquire, see Rodgers, 466 U.S. at 475, 104 S.Ct. at 1942, and the appellant had a corresponding “duty to account.” He did so account, but not truthfully. At the trial, he admitted that his statements were designed to mislead the investigators. To assure the investigators were misled, the appellant and Joyce called the minister who had previously married Joyce to Chis-ham and asked him to call the investigators and tell them that he, the minister, remembered marrying Joyce to Bud Prater, the appellant.⁴

Whether we apply the pre-Jackson precedent and focus on appellant’s duty to account, or the Jackson precedent focusing on “officiality of the investigation,” under the facts of appellant’s case the ultimate result remains the same — the “exculpatory no” defense does not come into play.

Appellant pled guilty and freely admitted to making false official statements intentionally designed to mislead military authorities in their conduct of an official investigation. He knew that his statements were false yet he persisted to perpetuate the lie. He did not raise the “exculpatory no” defense at trial and we thus have no occasion to reject his plea. See United States v. Sievers, 29 M.J. 72, 74 (C.M.A.1989).

Accordingly, we now hold that the appellant’s plea of guilty to Specification 3, Charge II, the false official statement offense, was provident.

We have considered the other issue raised, as well as those matters brought to our attention pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them without merit.

As for the Specification of Charge I (larceny), relying on the providence inquiry and the stipulation of fact, we affirm the finding of guilty of the Charge, but only so much of the Specification as provides that appellant did, at Fort Campbell, Kentucky, from 24 December 1986 through 1 September 1987, steal more than $100.00 in unentitled military benefits from the United States Army. The findings of guilty of the remaining charges and specifications are affirmed.

On the basis of the errors noted and the entire record, we will reassess the sentence. See United States v. Sales, 22 M.J. 305 (C.M.A.1986). The court affirms only so much of the sentence as provides for a bad-conduct discharge and confinement for six months.

Judge GILLEY concurs.

1 . Dependency based on a soldier’s status carries with it such benefits as: increased basic allowance for quarters, family separation allowance, dependent travel allowances, higher weight limitations for household goods shipment, medical and dental care, post exchange and commissary privileges. These benefits inure to the soldier and his spouse at the government’s expense.

2 , Although not necessary to our disposition of the issue involving the “exculpatory no” defense, we note from the allied papers that prior to his living with Joyce, appellant has been married at least three times and has a daughter with a woman to whom he has never been married; Joyce has been married six times. One of the two ID cards she had at the hospital was issued to her for being the dependent wife of service-member Chisham to whom she continued to be legally married while living with the appellant Prater; the other ID was issued to her on the basis of claimed dependency as the wife of appellant Prater.

3 . Allied papers in the Record of Trial show that in May 1987, the appellant was legally married to Donna Webb and Joyce was married to George Chisham; appellant and Joyce were not legally married to each other.

4 . Talking to the minister by telephone, appellant attempted to project himself in the image of George Chisham, albeit named Prater. The ruse backfired and the minister told the investigators that he married Joyce to George Chisham and not to Bud Prater.