United States v. Washington

9 C.M.A. 131, 9 USCMA 131, 25 C.M.R. 393, 1958 CMA LEXIS 610, 1958 WL 3179

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused issued a number of worthless checks. An investigation of the surrounding circumstances was made by a military police investigator. The accused gave the investigator a statement in which he said, in part, that he had opened a savings account with a named bank in New York City and that at the time of the interview he had on deposit about $1100. Later, the statement was made the basis of a charge of making a false official statement, in violation of Article 107, Uniform Code of Military Justice, 10 USC § 907. The charge was referred to trial, along with others alleging larceny by check, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The accused was convicted as charged and the conviction was affirmed, with some modification.

Two questions are raised on this appeal. The first is whether a pretrial statement made by the accused to his acting company commander is admissible in evidence. We all agree that a statement is inadmissible, despite advice to the accused of his rights under Article 31 of the Uniform Code, 10 USC § 831, if the accused is informed at the time of the advice by a competent person that whatever he says will be held in confidence between them. A representation of that nature tends to induce a belief in the mind of the accused that his disclosure will not be made the basis for a criminal prosecution. See United States v Cudd, 6 USCMA 630, 20 CMR 346. In my opinion, there is sufficient evidence to support a finding by the law officer that the representation of confidentiality in this case was simply to the eifect that the accused’s statement would not be publicized in the company area. However, my brothers are of the opinion that the evidence conclusively shows a representation of absolute confidentiality among the accused, the acting commander, and certain other persons. Under their view therefore, it was prejudicial error for the law officer to admit the accused’s pretrial statement into evidence.

The second issue is whether the accused’s statement to the military police investigator constitutes a false official statement within the meaning of Article 107 of the Uniform Code. In United States v Aronson, 8 USCMA 525, 25 CMR 29, the Court held that a statement of the kind in question was not within the scope of the Article. That ease controls the situation here.

The decision of the board of review is reversed. The findings of guilty and the sentence are set aside, and specification 2 of Charge I is ordered dismissed. A rehearing may be had on the other charges.

Judge FERGUSON concurs.