Lead Opinion
Opinion of the Court
The accused was convicted of larceny and two specifications alleging a violation of Article 107, Uniform Code of Military Justice, 10 USC § 907. His appeal is concerned with the latter offenses and with the correctness of the board of review’s аction in regard to the sentence.
From the evidence it appears that the accused was entrusted with money belonging to the Base Trailer Park Fund, Laughlin Air Force Base, Del Rio, Texas. A shortage in the fund was discovered during an audit by a base auditor. The matter was referred to the Office of Special Investigations and an agent was assigned to investigate. He questioned the accused. Before asking any questions, he informed the accused of the purpose of the investigation and of the рrovisions of Article 31, Uniform Code of Military Justice, 10 USC § 831. In the course of interrogation the accused said: “I didn’t remove any [money] or take any of the money and anything I can do to help I will.” A few days later he signed a written statement which contained substantially thе same assertion. Subsequently, he confessed that he took money from the fund. The present charges were then brought against him.
Article 107 provides that:
“Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing the same to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.”
The Government contends that the accused’s statements constitute “official” statements within the meaning of the Article. In part, it relies upon our decision in United States v Brumfield,
In United States v Hutchins, supra,
•In keeping with our earlier analysis it seems to us that the word “official” used in Article 107 is the substantial equivalent of the phrase “any matter within the jurisdiction of any dеpartment or agency of the United States” ¡found in § 1001. This approach brings .into focus the decisions of the Federal courts on the meaning of § 1001.
One Federal court has held that there ,is no violation of § 1001 when the person making the statement is “under ¡no legаl obligation to give information.” United States v Levin,
The accused was entrusted with the funds of the Base Trailer Fund which was under the general custodianship of a Lieutenant John M. Watson. This fund was a nonappropriated fund defined under Air Force regulations as a “sundry fund,” and is classified as
Here an audit disclosed a deficit of over $500 and an Office of Special Investigations agent was detailed to investigate the loss. A false statement to him regarding the stewardship of the fund could affect the nature of his report to the base commander and the latter’s action on the report. Thus, from the Government’s standpoint there was “power . . . [in] that particular agency to administer and enforce the law.” Carroll Vocational Institute v United States, 211 F2d 539, 540 (CA 5th Cir) (1954). As to it, the accused’s statement was plainly official.
The interview between the accused and the Office of Special Investigations agent also bore the stamp of officiality from the accused’s point of view, Being entrusted with the fund he was bound to account for it. United States v Valencia,
However, the accused contends that when a loss occurs under suspicious circumstances, his duty to account is superseded by the provisions of Article 31 of the Uniform Code. Cf. United States v Hоpkins, supra. He maintains that under Article 31 he “does not have to make any statement regarding the offense of which he is accused or suspected,” and, consequently, whatever he said to the agent was not said in response to a legal duty. We are not persuaded by this argument. Article 31 and Article 107 are not incompatible.
The obligation to account for what is entrusted to one is independent of Article 31. If the duty to account is affected by Article 31 it is only to the extent that the accused cannot be compelled to make a statement about the account. But he certainly remains liable, civilly or criminally as the case may be, for misconduct in regard to the funds entrusted to him. AFR 176-8, paragraphs 20, 21; United States v Sicley,
The situation here, therefore, is not at all comparable to one in which a рerson suspected or accused of a crime unrelated to any duty or responsibility imposed upon him gives a statement to a law enforcement agent investigating the alleged offense. In the latter instance the agent has no right or power “to require the statement” from the accused. See Manual for Courts-Martial, United States, 1951, paragraph 186; United States v Williams,
Insofar as the second assignment of error is concerned, we conclude that under the circumstances of this case, the boаrd of review effectively cured the error in the law officer’s instructions on the sentence. United States v Reiner,
Notes
One of the counts charged that the defendant falsely stated that he had not seen one Carol Anderson, early in 1953. The second count alleged that the defendant lied when he denied using an alias.
Concurrence Opinion
(concurring in the result) :
I concur in the result.
In the principal opinion, my associates discuss the officiality of an Article 31 interrogation. As a consideration of that question is not necessary for the disposition of this case, I will reserve my opinion until that time when it is properly presented to this Court.