                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                  Daniel F. CZESCHIN, Fireman Apprentice
                        U.S. Coast Guard, Appellant

                                     No. 01-0222
                               Crim. App. No. 1125

             United States Court of Appeals for the Armed Forces

                               Argued October 23, 2001

                               Decided March 14, 2002

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and BAKER, JJ., joined. SULLIVAN,
S.J., filed an opinion concurring in the result.


                                        Counsel

For Appellant:    Lieutenant Junior Grade Loren A. Friedel (argued).


For Appellee: Lieutenant Daniel J. Goettle (argued); Lieutenant Mark A.
     Cunningham (on brief); Commander C.P. Reilly.



Military Judge:    Robert Bruce




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Czeschin, No. 01-0222/CG



   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of a military judge sitting

alone convicted appellant, pursuant to his pleas, of

false official statement, wrongful use of marijuana, wrongful

use of marijuana while on board a vessel used by the armed

forces, wrongful introduction of marijuana onto a vessel used by

the armed forces with intent to distribute, wrongful

introduction of cocaine onto a vessel used by the armed forces,

wrongful distribution of marijuana while on board a vessel used

by the armed forces, wrongfully importing marijuana into the

customs territory of the United States while on board a vessel

used by the armed forces, wrongfully importing cocaine into the

customs territory of the United States while on board a vessel

used by the armed forces, and impeding an investigation, in

violation of Articles 107, 112a, and 134, Uniform Code of

Military Justice (UCMJ), 10 USC §§ 907, 912a and 934,

respectively.   He was sentenced to a bad-conduct discharge,

confinement for two years, total forfeitures, and reduction to

E-1.   The convening authority approved the sentence but

suspended confinement in excess of fifteen months for a period

of twelve months, and the Court of Criminal Appeals affirmed.

54 MJ 656 (2000).




                                 2
United States v. Czeschin, No. 01-0222/CG


     On appellant’s petition, we granted review of the following

issue:

               WHETHER APPELLANT WAS DENIED A FAIR
               SENTENCING HEARING WHEN THE MILITARY
               JUDGE DENIED APPELLANT'S MOTION TO
               DISMISS AND CONSIDERED APPELLANT'S
               DISHONEST STATEMENT TO INVESTIGATIVE
               AGENTS AN OFFICIAL STATEMENT IN
               VIOLATION OF UCMJ, ARTICLE 107, WHEN
               M.C.M., PART IV, PARAGRAPH 31c(6),
               EXPRESSLY EXCLUDES STATEMENTS MADE BY
               AN ACCUSED TO INVESTIGATIVE AGENTS FROM
               THE DEFINITION OF OFFICIAL STATEMENTS.

We affirm, for the reasons set forth below.


                         I. BACKGROUND

                     A. Procedural Setting


     Appellant, who was suspected of drug-related offenses, was

interviewed by agents of the Coast Guard Investigative Service

(CGIS) on June 19, 1998, as part of an official investigation.

After waiving his statutory rights against self-incrimination

under Article 31(b), UCMJ, 10 USC § 831(b), appellant provided a

sworn, written statement which included the following

statements: “I do not smoke marijuana at all,” and “I do not

know of anyone who currently smokes marijuana.”   His involvement

with drugs and his subsequent statement to the CGIS led to the

charges detailed at the outset of this opinion.




                                3
United States v. Czeschin, No. 01-0222/CG



     At trial, appellant moved unsuccessfully to dismiss the

false official statement charge under RCM 907(b)(1)(B), Manual

for Courts-Martial, United States (2000 ed.),∗ on the ground

that it did not state an offense.    Appellant contended that a

statement made to an investigator is not an “official statement”

for purposes of a prosecution under Article 107 if the person

making the statement did not have an independent duty to speak,

citing the explanation of Article 107 in paragraph 31c(6)(a) of

Part IV of the Manual.



         B. False Official Statements under Article 107


     Article 107 provides that a person subject to the UCMJ

“who, with intent to deceive, . . . makes any . . . false

official statement knowing it to be false, shall be punished as

a court-martial may direct.”   In United States v. Solis, 46 MJ

31 (1997), we held that statements to investigators could be

prosecuted as false official statements.    Solis also rejected

the so-called "exculpatory no" doctrine, thereby making it clear

that a person may be prosecuted under Article 107 for a

statement that consists solely of a negative response to a

question from a law enforcement agent.    Id. at 34; see Brogan v.


∗
 Cited provisions of the current Manual are identical to the
ones in effect at the time of appellant's court-martial.

                                 4
United States v. Czeschin, No. 01-0222/CG


United States, 522 U.S. 398 (1998) (rejecting application of the

exculpatory-no doctrine to prosecutions for false statements

under 18 USC § 1001).



    C. Explanatory Material in the Manual for Courts-Martial


     In Solis, we took note of paragraph 31c(6)(a) of Part IV of

the Manual, supra, which states:

          A statement made by an accused or suspect
          during an interrogation is not an official
          statement within the meaning of the article
          if that person did not have an independent
          duty or obligation to speak.

We observed that

          [b]ecause this guidance [in paragraph
          31c(6)] is not based upon the statutory
          elements of the offense [under Article 107],
          it does not impose upon the prosecution an
          affirmative obligation to prove such an
          independent duty or obligation.

46 MJ at 35.   We also noted that the Manual’s guidance could be

interpreted as serving at least three different purposes:

          First, it could be seen as nothing more than
          an expansive description of dicta from this
          Court’s decisions that predate the 1984
          revision of the Manual, with no intent to
          limit prosecutions. Second, it could be
          viewed as protecting an accused against
          overcharging. Third, it could be viewed as
          guidance for the conduct of investigations .
          . . .




                                   5
United States v. Czeschin, No. 01-0222/CG


Id.   In view of the fact that the accused in Solis did not rely

on the Manual's provision at trial, we held that he could not

assert it on appeal.    We reserved judgement as to whether the

applicable Manual provisions were "intended to establish a

procedural right that can be invoked by an accused or whether

they constitute internal guidelines intended only to regulate

government conduct."    Id. at 35-36, citing United States v.

Caceres, 440 U.S. 741 (1979)(violation of Internal Revenue

Service rule regarding recording conversations with taxpayers,

which is required neither by the Constitution nor by statute,

does not require exclusion of evidence).



                   D. Hierarchical Sources of Rights
                     in the Military Justice System


      Our Court has observed that there are "hierarchical sources

of rights" in the military justice system, including the

Constitution, federal statutes, Executive Orders, Department of

Defense Directives, service directives, and federal common law.

United States v. Lopez, 35 MJ 35, 39 (CMA 1992).       "Normal rules

of statutory construction provide that the highest source

authority will be paramount, unless a lower source creates rules

that are constitutional and provide greater rights for the

individual.” Id.




                                   6
United States v. Czeschin, No. 01-0222/CG


     In United States v. Davis, 47 MJ 484 (1998), we discussed

the related question of the relationship between the Manual’s

provisions and individual rights.     We noted that the President

has express authority under Article 36(a), UCMJ, 10 USC

§ 836(a), to promulgate the rules of procedure and evidence set

forth in Parts II and III of the Manual for Courts-Martial.     We

also observed that, by contrast, the President’s interpretations

of substantive offenses in Part IV of the Manual -- the Part at

issue in the present case -- are not binding on the judiciary,

which has the responsibility to interpret substantive offenses

under the Code.    Id. at 486, citing United States v. Mance, 26

MJ 244 (1988).    We emphasized, however, the difference between

Presidential interpretation of substantive offenses and

Presidential issuance of rules in Part IV protecting the rights

of servicemembers, making it clear that the President has the

authority to grant greater rights under Part IV than might be

provided by statute.    As a result, when a Presidential rule is

unambiguous in terms of granting greater rights than provided by

a higher source, the rule governs, unless it clearly contradicts

the express language of the UCMJ.     Id. at 486.

     In Davis, we held the rule at issue -- paragraph

54(c)(4)(a)(ii) of Part IV of the Manual -- was unambiguous,

with no indication on the face of the rule that it served any

purpose other than establishment of a limitation.     In that


                                  7
United States v. Czeschin, No. 01-0222/CG


context, we concluded that the rule constituted “an appropriate

Executive branch limitation on the conduct subject to

prosecution” under Article 128, UCMJ, 10 USC § 928 (assault).

Id. at 486-87.   Our decision in Davis reflected the fundamental

relationship between the Manual’s provisions and the role of the

judiciary, as emphasized in the Drafters’ Analysis of the Rules

for Courts-Martial:

          [A]mendment of the Manual is the province of
          the President. Developments in the civilian
          sector that affect the underlying rationale
          for a rule do not affect the validity of the
          rule except to the extent otherwise required
          as a matter of statutory or constitutional
          law. The same is true with respect to rules
          derived from the decisions of military
          tribunals. Once incorporated into the
          Executive Order, such matters have an
          independent source of authority and are not
          dependent upon continuing support from the
          judiciary.

Manual, supra at A21-3.


                          II. DISCUSSION


     In Solis, we left open the question as to whether paragraph

31c(6)(a) establishes a binding limitation or merely reflects a

non-binding interpretation of case law.    Our suggestion in Solis

that the provision could be viewed either as a binding

limitation or non-binding guidance reflects the fact that

paragraph 31c(6)(a) -- unlike the provision at issue in Davis --

contains a facial ambiguity with respect to its purpose.


                                 8
United States v. Czeschin, No. 01-0222/CG


Paragraph 31c(6)(a) expressly provides that a statement is “not

an official statement within the meaning of the article” in the

absence of an independent duty or obligation to speak, which

suggests that it may serve simply as a reflection of case law

under Article 107 rather than as a rule of limitation.    Although

the phrase “within the meaning of the article” does not

demonstrate, by itself, that the rule is not a binding

limitation, the facial ambiguity as to purpose requires us to

examine other sources of interpretation, including the drafting

history.

     In that regard, we note the 1951 Manual, promulgated in

conjunction with implementation of the UCMJ, provided no such

limitation.   See para. 186, Manual for Courts-Martial, United

States, 1951.   Subsequently, our Court issued several opinions

indicating that statements to investigators were not “official

statements” under Article 107.    See United States v. Aronson, 8

USCMA 525, 25 CMR 29 (1957);    United States v. Washington, 9

USCMA 131, 25 CMR 393 (1958).    The 1969 Manual was amended to

include language similar to the present version.    See para. 186,

Manual for Courts-Martial, United States, 1969 (Rev. ed.).    The

Drafters’ Analysis simply cited the case law as the basis for

the change.   Analysis of Contents, Manual for Courts-Martial,

United States, 1969, Revised Edition, Dept. of the Army Pamphlet

27-2 at 28-10 (July 1970).   The Drafters’ Analysis of the 1984


                                  9
United States v. Czeschin, No. 01-0222/CG


Manual, which is the source of the present version, cited the

previous version, as well as Aronson, Washington, and a later

case, United States v. Davenport, 9 MJ 264 (CMA 1980).   Manual

for Courts-Martial, United States, 1984, at A21-92.

     Neither the drafting history, nor any other source cited to

us by the parties, demonstrates that the pertinent language in

paragraph 31c(6)(a) was included in the Manual for any purpose

other than as an attempt to reflect an interpretation of Article

107 under then-existing case law -- an interpretation that is no

longer valid.   See Solis, supra at 33-34.   In light of the fact

that paragraph 31c(6)(a), on its face, raises a question as to

whether it is a binding rule or non-binding guidance, and in

light of the drafting history, we conclude that it does not

establish a right that may be asserted by an accused who is

charged with violating Article 107.



                          III. CONCLUSION


     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




                                10
United States v. Czeschin, No. 01-0222/CG


    SULLIVAN, Senior Judge (concurring in the result):

    Appellant, who gave a false, sworn, written statement to

criminal investigators after he waived his statutory rights

against self-incrimination, can be prosecuted for making a false

official statement in violation of Article 107, Uniform Code of

Military Justice.   United States v. Prater, 32 MJ 433, 438 (CMA

1991); see United States v. Solis, 46 MJ 31, 36 (1997) (Sullivan,

J., concurring in the result).

    One need not speculate on the “drafting history” of the

Manual for Courts-Martial to reach this position.   In United

States v. Prater, supra, this Court clearly stated,

“[S]tatements to military criminal investigators can now be

considered official for purposes of Article 107.    Finally, where

warnings under Article 31 are given to the criminal suspect, as

in the present case, his duty to respond truthfully to criminal

investigators, if he responds at all, is now sufficient to impute

officiality to his statements for purposes of Article 107.”

    In my view, there is an independent duty not to lie to

investigators once one has waived his or her self-incrimination

rights.   The Constitution and Article 31 provide rights and

protect the serviceperson until those rights are waived.   In

issuing paragraph 31c(6)(a), Manual for Courts-Martial, United

States (1998 ed.), the President did not intend to create a “safe

harbor” for a serviceperson to lie to investigators without

punishment.
United States v. Czeschin, 01-0222/CG


     Once a suspect has waived his self-incrimination rights, the

suspect on active duty has attendant duties and responsibilities.

See United States v. Medley, 33 MJ 75, 77 (CMA 1991) (“The policy

basis for reporting misconduct in the military is more than

powerful; it is axiomatic.”);   see, e.g., U.S. Navy General

Regulation 1137 (Sept. 14, 1990) (duty to report offenses under

Code unless criminally involved).    The military suspect, if he

waives his rights and chooses to talk to investigators, cannot

mislead or thwart an investigator with lies, especially, as in

this case, where a sworn, false, written statement was given to

the investigators.   See also United States v. Arriaga, 49 MJ 9

(1998) (holding that military accused can be prosecuted for

obstruction of justice in similar circumstances).    Logic and our

case law will not allow appellant to escape prosecution under

Article 107.   See, e.g., United States v. Prater, 32 MJ at 438;

United States v. Dorsey, 38 MJ 244, 248 (CMA 1993); United States

v. Frazier, 34 MJ 135 (CMA 1992); United States v. Gay, 24 MJ

304, 306 n.3 (CMA 1987).




                                 2
