Thursday, October 16, 2008

CAAFlog exclusive: new published AFCCA opinion [UPDATED]

Here's a link to United States v. Cofer, __ M.J. ___, No. ACM 37075 (A.F. Ct. Crim. App. Oct. 16, 2008), a new published Air Force Court opinion rejecting a challenge to a guilty plea to an Article 107 false official statement charge arising from an Airman's statement to a civilian police detective.

Senior Airman Cofer torched his own car as part of an insurance scam. He badly burned himself in the process. To cover up for his misdeeds and resulting injuries, which were committed off-base, he concocted a story about being kidnapped and forced to torch his own car.

A civilian police detective from a jurisdiction near the base interrogated him. Unbeknownst to SrA Cofer, an Air Force OSI agent was observing. Cofer began the interrogation by delivering his rather fantastic tale and ended it by confessing. In addition to facing a charge resulting from his arson, he found himself also facing a false official statement charge.

AFCCA affirmed, noting that the military judge had concluded the statement was official based on factors including the offenses' proximity to the base (though committed a few miles from Luke Air Force Base), the civilian police department's proximity to the base, the civilian detective's knowledge that Cofer was in the Air Force, and the civilian detective's decision to involve AFOSI in the case.

Applying CAAF's decision in United States v. Day, 66 M.J. 172 (C.A.A.F. 2008), which was decided after SrA Cofer was tried, AFCCA affirmed.

I hope that CAAF will grant review of this case. I find treating Cofer's statements as "official" for UCMJ purposes a bit of a stretch. But I'm less interesting in whether Cofer can or can't get out of his guilty plea than I am in getting a better understanding of Day. Day involved an Airman Basic who injured his child and then lied to emergency responders about the causes of the injury. The opinion does a good job of explaining why AB Day was guilty of making a false official statement to the firemen who came to his house even though they were civilians and he was off-duty. But the case summarily sets aside the finding of guilty to making a false statement to the off-base operator who dispatched the emergency providers. While that is probably the right result, the opinion doesn't make clear why the result is different for the off-base operator than for the emergency responders. And it muddies the water further by dropping a footnote indicating that in some cases, false statements to off-base operators can violate Article 107. We need more guidance concerning when statements to off-base civilian government officials do and don't fall within Article 107. Cofer provides a good opportunity for CAAF to further clarify its case law in this recurring area.


Christopher Mathews said...

Didn't CAAF grant review on the Day case last month? I'm also curious to see how they'll decide.

Cloudesley Shovell said...

Roscoe Filburn could be sanctioned for growing wheat on his own land for his own use because said heinous act "effected interstate commerce."

If the greatest legal minds could so torture language and common sense when it comes to "interstate commerce", any fool can interpret the text of Art. 107, UCMJ, to expansively construe "official statement" to include any utterance passing the lips of an active-duty servicemember that is or could have been heard by any other governmental employee.

I'll keep saying it, even though nobody listens . . . what ever happened to strictly construing criminal statutes? What ever happened to the rule of lenity?

And while I'm at it, the real crime here was the burning of the car with intent to defraud (I can't get to the opinion, I assume there were other charges besides the 107). Why waste the effort on the 107 charge when you have all the other real crimes?

Dew_Process said...

All barracks bullshit is now criminal!

Strict Construction? Lenity?? How quaint! Just read Judge Baker's dissent in US v. Wilson, 66 MJ 39.

It's honored [when recognized] in the breach, otherwise the "criminal" would go free. If ever there was a cause for lenity to be applied, poor Alex Wilson was such a case. But, he's now another "registered sex offender!"

The girl lies about her age [if she was a dependent, was that a false official statement?] and the court says, "so what?"

I agree with the Dead Admiral, why waste time and create bad law, when there were other offenses to focus on.