United States v. Day

UNITED STATES, Appellee
v.
Rodger J. DAY, Airman Basic
U.S. Air Force, Appellant
No. 07-0690
Crim. App. No. 36423
United States Court of Appeals for the Armed Forces
Argued January 15, 2008
Decided April 1, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Captain Ryan N. Hoback (argued); Colonel Gerald
R. Bruce, Major Matthew S. Ward, and Major Donna S. Rueppell (on
brief).
Military Judge: Mary M. Boone
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Day, No. 07-0690/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried before a general court-martial with
members at Little Rock Air Force Base, Arkansas. Contrary to
his pleas, he was convicted of making a false official
statement, reckless endangerment, and obstructing justice, all
in violation of Articles 107 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 907, 934 (2000). The adjudged and
approved sentence included a bad-conduct discharge, confinement
for ninety days, and forfeiture of all pay and allowances. The
United States Air Force Court of Criminal Appeals affirmed.
United States v. Day, No. ACM 36423, 2007 CCA LEXIS 202, 2007 WL
1732431 (A.F. Ct. Crim. App. May 9, 2007) (unpublished). On
Appellant’s petition we granted review of the following
question:
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN
APPELLANT’S CONVICTION OF CHARGE I AND ITS SPECIFICATION,
FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, WHERE THE
STATEMENTS WERE NOT “OFFICIAL” STATEMENTS.
Based on the reasoning below, we hold that although the
statements made by Appellant to the on-base emergency medical
personnel were “official” under Article 107, UCMJ, those made to
the civilian 911 operator were not. Nonetheless, for the
reasons discussed below, we affirm.
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United States v. Day, No. 07-0690/AF
FACTS
The lower court set forth the following facts relevant to
the granted issue:
The appellant, his wife, and two children lived
in base housing at Little Rock Air Force Base, (LAFB)
Arkansas. On 26 September 2003, the appellant was at
home with the children while his wife went out. The
appellant put the children to bed and then went to bed
shortly thereafter. At approximately 0400 hours on 27
September 2003, O.J.H.D. awoke the appellant. The
appellant got up, went into O.J.H.D.’s room, changed
his diaper, applied paste to his son’s diaper rash,
and propped a bottle in his mouth using a teddy bear
found in the crib to do so. In addition, the
appellant tucked O.J.H.D. in his crib with blankets
(including a quilt) before going back to his room to
go to sleep. The appellant woke up at about 0900
hours on 27 September 2003. He noticed his son had
not awakened him between 0400 and 0900 hours. This
was unusual because normally O.J.H.D. would awaken the
appellant sometime during those hours. When the
appellant checked on his son, he found him lying still
on his back with his mouth and nose covered by the
quilt. According to the appellant’s written
statement, he took his son out of the crib, went to
the living room, and started checking him for signs of
life. He then changed his son’s diaper and got
dressed before calling 911 for help. He took
approximately 45 minutes between the time he first
noticed his son lying motionless and the time he
called 911. According to the appellant, he tried to
revive his son via CPR before calling 911, but was
unable to do so.
The appellant informed the 911 dispatcher, Ms.
E.M., he found his son lying face down, his lips were
blue, and he was not moving. Ms. E.M. instructed the
appellant how to perform CPR on his infant son. The
appellant continued to perform CPR on O.J.H.D. until
the fire department arrived. The appellant told Mr.
J.T. and Mr. W.P., firemen from the LAFB Fire
Department, he found his son face down in the crib.
The firemen began performing CPR on the appellant’s
son. Once the paramedics arrived, O.J.H.D. was
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United States v. Day, No. 07-0690/AF
transported by ambulance to a local off base hospital.
Unfortunately, O.J.H.D. could not be saved and was
declared dead at 0953 hours on 27 September 2003.1
2007 CCA LEXIS 202, at *2-*4, 2007 WL 1732431, at *1 (footnotes
omitted). Appellant’s statements to the dispatch operator and
the responding firemen formed the basis of the offense charged
under Article 107, UCMJ.2
DISCUSSION
The test for legal sufficiency of the evidence is whether,
considering the evidence in the light most favorable to the
prosecution, any reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). This Court’s assessment
of an appellant’s guilt or innocence for legal sufficiency is
1
At the time, Appellant’s infant son was nine weeks old.
2
The specification under Charge I reads as follows:
Specification: In that AIRMAN BASIC RODGER J. DAY,
United States Air Force, 314th Civil Engineer
Squadron, Little Rock Air Force Base, Arkansas, did,
at or near Little Rock Air Force Base, Arkansas, on
divers occasions, on or about 27 September 2003, with
intent to deceive, make to Mr. Jan Edrick Tan, Mr.
William Powell, and Ms. Elaine Mayberry an official
statement, to wit: that on 27 September 2003, Airman
Basic Rodger J. Day found his son, Owen Jasper Hosford
Day, lying face down in his crib, which statement was
false in that Airman Basic Rodger J. Day found his
son, Owen Jasper Hosford Day, lying face up in his
crib, and was then known by said Airman Basic Rodger
J. Day to be so false.
4
United States v. Day, No. 07-0690/AF
limited to the evidence presented at trial. See United States
v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
Appellant argues that the statements made were not
“official” statements within the meaning of Article 107, UCMJ.
First, the statements were made to a civilian. Second, they
were made when he was in an off-duty military status. And
third, they did not relate to his military duties. In support
of his argument, Appellant points to the Manual for Courts-
Martial, United States pt. IV, para. 31.c.(1) (2005 ed.) (MCM),
which states in relevant part, “[O]fficial statements include
all documents and statements made in the line of duty.”
Article 107, UCMJ, states:
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.
This article has been interpreted in light of the Supreme
Court’s analysis of its federal analogue, 18 U.S.C. § 1001(2000). Specifically, this Court analogized the meaning of
“official” with the language of 18 U.S.C. § 1001 prohibiting any
false statement made concerning “any matter within the
jurisdiction of any department or agency of the United States,”
as interpreted liberally by the federal courts. United States
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United States v. Day, No. 07-0690/AF
v. Jackson, 26 M.J. 377, 378 (C.M.A. 1988) (citation and
quotation marks omitted).
At the same time, Article 107, UCMJ, and 18 U.S.C. § 1001are not perfectly congruent. “In fact, this Court has
recognized that the scope of Article 107 is more expansive than
its civilian counterpart, because ‘the primary purpose of
military criminal law —- to maintain morale, good order, and
discipline -- has no parallel in civilian criminal law.’”
United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003)
(citations omitted). For example, in United States v. Harrison,
26 M.J. 474, 476 (C.M.A. 1988), statements made to a battalion
personnel actions center clerk regarding the appellant’s pay
inquiry were found to be official due to the appellant’s
admission that they “were related to [the clerk’s] job.”
With this legal backdrop we turn to Appellant’s three
arguments. Regarding Appellant’s first distinction, the fact
that the statements were made to a civilian or a military member
is not dispositive of their official nature. Rather, the
critical distinction is not whether the recipient of a statement
is civilian or military, but whether the statements relate to
the official duties of either the speaker or the hearer, and
whether those official duties fall within the scope of the
UCMJ’s reach. Thus, in Teffeau, this Court found that the
appellant’s statements to civilian law enforcement officers were
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United States v. Day, No. 07-0690/AF
official because they “bore a direct relationship to Appellant’s
duties and status as a Marine Corps recruiter.” Teffeau, 58
M.J. at 69.
For similar reasons, Appellant’s off-duty status is not
determinative in this case; and Appellant’s effort to
distinguish Teffeau by correctly noting that his statements did
not relate to his military duties is not persuasive. False
official statements are not limited to line of duty statements.
This principle is reflected in this Court’s case law, which has
approached the issue from the perspective of both the hearer and
the speaker. See generally United States v. Arthur, 8 C.M.A.
210, 210-11, 24 C.M.R. 20, 20-21 (1957); United States v.
Cummings, 3 M.J. 246, 248 (C.M.A. 1977).3
There are any number of determinations made outside of a
servicemember’s particular duties that nonetheless implicate
official military functions, and thus the proscription against
false official statements. For example, under the Federal Tort
Claims Act, 28 U.S.C. §§ 2671-2672 (2000), determinations made
regarding a servicemember’s entitlements are official as are
statements implicating the government’s liability. Teffeau, 58
M.J. at 68 n.3.
3
In both Arthur and Cummings, the Court found that the
statements made were unofficial due to the lack of a
governmental function, but were analyzed from the standpoint of
the recipients.
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United States v. Day, No. 07-0690/AF
Applying this legal framework to the present facts and in
light of the purposes of Article 107, UCMJ, Appellant’s
statements were appropriately determined to be false. They were
also official, in so far as they were made to civilian personnel
who were members of the base fire department charged with
performing an on-base military function. These personnel were
providing on-base emergency services pursuant to the commander’s
interest in and responsibility for the health and welfare of
dependents residing in base housing over which he exercised
command responsibility.
This is evident in the case of the firemen. However, a
closer question is presented as to whether Article 107, UCMJ,
reaches the statement made to the civilian off-base 911 dispatch
operator. On this record the evidence is not sufficient for us
to conclude that the statements to the 911 operator were
official, but this conclusion does not affect the finding of
guilt as to the charge and specification.4 In affirming
Appellant’s conviction for the statements made to the emergency
responders, we are confident that without the additional
4
In theory, statements made to an off-base 911 operator might
implicate Article 107, UCMJ, in situations where, among other
things, there is a predictable and necessary nexus to on-base
persons performing official military functions on behalf of the
command.
8
United States v. Day, No. 07-0690/AF
statement made to the 911 operator, the sentence adjudged and
approved would have been the same.5
DECISION
For the reasons stated above, the decision of the United
States Air Force Court of Criminal Appeals is affirmed, except
for the words “and Ms. Elaine Mayberry” contained in the
specification under Charge I.
5
In the specification at issue, the 911 operator is Ms. Elaine
Mayberry.
9