Article 107, UCMJ: Do False Statements Really Have to Be Official?

• Author: Lieutenant Colonel Colby C. Vokey, Usmc
• Pages: 02

MILITARY LAW REVIEW

Volume 180 Summer 2004

ARTICLE 107, UCMJ: DO FALSE STATEMENTS REALLY HAVE TO BE OFFICIAL?

LIEUTENANT COLONEL COLBY C. VOKEY, USMC1

Getting to the bottom of things like that was impossible. You just had to take the practical view that a man always lied on his own behalf, and paid his lawyer, who was an expert, a professional liar, to show him new and better ways of lying.2

1. Introduction

   In 1950, Congress passed the Uniform Code of Military Justice (UCMJ),3 providing a comprehensive system of military justice applicable to all the armed forces. Through this landmark legislation, Congress specifically addressed offenses involving falsehoods by service members. Such falsehoods have always proven contrary to the ideals of trust and integrity vital to the maintenance of military discipline. Falsehoods and

   1. Judge Advocate, United States Marine Corps. Presently assigned as the Regional Defense Counsel for the Western Region of the United States. Master of Laws, 2003, The Judge Advocate General's School, U.S. Army; J.D., 1998, University of North Dakota; B.S., 1987, Texas A&M University. Previous assignments include Student, 51st Judge Advocate Officer Graduate Course, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia, 2002-2003; Legal Services Support Section, 1st Force Service Support Group, Camp Pendleton, California, 1998-2002 (Officer in Charge, Legal Services Support Team E; Officer in Charge, Legal Services Support Team D; Senior Defense Counsel); Inspector-Instructor, Headquarters Battery, 14th Marines, Dallas, Texas, 1992-1995; Officer in Charge, Classified Files and Special Correspondence, 3d Marine Division, Okinawa, Japan, 1991-1992; Executive Officer, Battery L, 2d Battalion, 12th Marines (10th Marines), Operation Desert Shield/Storm, Saudi Arabia/Kuwait, 1991; 4th Battalion, 12th Marines, 3d Marine Division, Okinawa, Japan, 1989-1991 (Assistant Battalion Operations Officer, Adjutant, Battery Fire Direction Officer). Member of the bars of Texas, North Dakota, the U.S. Court of Appeals for the Armed Forces, and the Supreme Court of the United States. This article was submitted in partial completion of the Master of Laws requirements of the 51st Judge Advocate Officer Graduate Course.

   2. JAMES GOULD COZZENS, THE JUST AND THE UNJUST 330 (1942).

   3. Act of May 5, 1950, ch. 169, 64 Stat. 107 (current version at 10 U.S.C. §§ 801-946).

      1

      false statements by service members are "condemned by military law as much for [their] unsoldierly qualities as for the deceit and fraud [they] may accomplish. A falsehood can never be interpreted as an innocent act."4

      In order to address acts by service members involving falsehoods, Congress enacted three specific punitive articles in the UCMJ that cover these offenses. These three articles are: Article 107, False official statements; Article 131, Perjury; and Article 132, Frauds against the United States.5 Additionally, a service member could be charged with an offense involving a falsehood under either Article 133, Conduct unbecoming an officer and gentlemen, or Article 134, General article.6 This article concerns only Article 107, which proscribes the making of false official statements.

      Service members often make false statements. Not all such statements, however, violate Article 107. In establishing Article 107, Congress provided that, "[a]ny 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."7 The President of the United States thereafter promulgated the Manual for Courts-Martial (MCM)8 to implement the UCMJ and provide supplemental rules. In the MCM, the President broke down the statute into four elements, established maximum possible punishments, and provided amplifications, explanations and definitions to aid practitioners and service members in understanding the UCMJ.9

      The first element of the offense, as listed in the MCM, states "[t]hat the accused signed a certain official document or made a certain official statement."10 Criminalizing false language under Article 107 requires the

   4. Robert S. Stubbs II, Falsehoods, JAG J., Mar. 1955, at 14, 18.

   5. UCMJ arts. 107, 131, 132 (2002).

   6. Id. arts. 133, 134. See Captain Kenneth M. Abagis, The False Statement: A Comparative Study of 18 U.S.C. 1001 and Article 107, Uniform Code of Military Justice 5 (1961) (unpublished thesis, The Judge Advocate General's Legal Center and School, U. S. Army) (on file with The Judge Advocate General's Legal Center and School Library, Charlottesville, Virginia).

   7. 10 U.S.C. § 907 (1956).

   8. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002) [hereinafter MCM].

      statement be "official." The officiality of a certain statement depends on

      the facts of each case. Consider the following five scenarios:

   1. In order to be excused from her apartment lease, a Marine lance corporal falsely tells her landlord that her father was killed in the September 11, 2001 terrorist attack on the Pentagon .11

   2. An airman tells another airman that he was a star running back on his high school football team when, in fact, he was only the water boy.

   3. A soldier lies to a civilian police officer during a state investigation concerning his involvement in a fight and shooting involving a senior non commissioned officer at an off-post bar and trailer park.12

   4. In order to impress a civilian girl, a corporal falsely alters his leave and earnings statement to reflect a higher salary than he really receives.

   5. A military recruiter lies to a civilian police officer during a state

   9. Id. The following excerpt from part IV, ¶ 31 of the MCM sets out the elements of proof and some of the explanation that corresponds with Article 107, UCMJ:

      b. Elements.

      (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.

      c. Explanation.

      (1) Official documents and statements. Official documents and official statements include all documents and statements made in the line of duty.

      Id.

   10. Id. (emphasis added).

   11. Gov't Mot. to Reconsider Ruling on Article 134 Preemption, United States v. MarksJones (Camp Pendleton 2002) (an unreported special court-martial that resulted in an acquittal) (on file at Legal Service Support Section, 1st Force Service Support Group, Camp Pendleton, California).

   12. United States v. Johnson, 39 M.J. 1033 (A.C.M.R. 1994) (holding that oral statements by a soldier to civilian law enforcement officers, who were conducting a state investigation concerning an off-post altercation and shooting involving another service member, were not official under Article 107).

       investigation into a fatal automobile accident involving another recruiter and a recruit.13

       In each of the five scenarios, the service member made a false statement. The issue, however, is whether or not each false statement is "official" and thereby capable of sustaining a conviction under Article 107. Today, service members face a continually expanding application of the term "official" under Article 107. This article examines the scope of Article 107. Specifically, the article focuses on the first element of the offense, which limits proscribed conduct under Article 107 to "official" statements. Although the article reviews cases involving the so-called "exculpatory no" doctrine, that doctrine is not discussed in this article.14

       Part II of this article analyzes a recent case applying Article 107, United States v. Teffeau.15 Teffeau involved a Marine Staff Sergeant (SSgt) who lied to civilian police officers concerning an automobile accident involving another Marine and a recruit.16 Affirming the conviction, the United States Court of Appeals for the Armed Forces (CAAF) found that SSgt Teffeau's false statements to Winfield, Kansas police officers were made in the line of duty and therefore "official" under Article 107.17

       Part III examines the background and history of the UCMJ and Article 107. In particular, this section reviews the congressional debates and activities surrounding the enactment of the UCMJ, in order to shed some light on the purpose and meaning of Article 107. Additionally, the article discusses the drafting and promulgation of the MCM. The MCM implements the UCMJ and provides explanations and definitions for the application of Article 107.

       Part IV looks at a similar civilian federal statute, Section 1001 of Title 18 of the United States Code (§ 1001).18 The federal courts have dealt with

   13. United States v. Teffeau, 58 M.J. 62 (2003).

   14. United States v. Hutchins, 18 C.M.R. 46 (C.M.A. 1955); United States v. Aronson, 25 C.M.R. 29 (C.M.A. 1957); United States v. Jackson, 26 M.J. 377 (C.M.A. 1988); United States v. Solis, 46 M.J. 31,34 (1997). The "exculpatory no" doctrine is based on the premise that an accused should not be prosecuted for making false statements to law enforcement officials by simply denying guilt or wrongdoing. See United States v. McCue, 301 F.2d 452 (2d Cir. 1962), cert. denied, 370 U.S. 939 (1962). Although this doctrine is found in military cases involving Article 107 offenses, the "exculpatory no" defense does not directly concern the officiality of false statements.

   15. Teffeau, 58 M.J. at 62.

   16. Id.

   17. Id. at 69.

       this falsity offense, in one form or another, since the close of the Civil War.19 The military courts have followed § 1001 federal case law since 1955, regularly comparing § 1001 to Article 107 in order to define military officiality.20

       Part V reviews other recent case law surrounding the officiality requirement of Article 107. Additionally, § 1001 and Article 107 treat oral and...