                       UNITED STATES, Appellee
                                    v.
                  Chadrick L. CAPEL, Senior Airmen
                      U.S. Air Force, Appellant
                              No. 12-0320
                        Crim. App. No. S31819
       United States Court of Appeals for the Armed Forces
                       Argued October 10, 2012
                           February 14, 2013
BAKER, C.J., delivered the opinion of the Court, in which ERDMANN and
RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed a separate
opinion concurring in part and dissenting in part.
                                 Counsel
For Appellant: Major Matthew T. King (argued); Captain Shane M.
McCammon (on brief).


For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).


Military Judge:   David S. Castro


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Capel, No. 12-0320/AF


     Chief Judge Baker delivered the opinion of the Court.

     Appellant was tried by a military judge sitting as a

special court-martial.    Contrary to his pleas, he was convicted

of signing a false official document, two specifications of

larceny, and three specifications of obtaining services by false

pretenses, in violation of Articles 107, 121, and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921, 934

(2006), respectively.    The adjudged and approved sentence

included a bad-conduct discharge, confinement for six months,

forfeiture of $200 pay per month for six months, and reduction

to pay grade E-1.    The United States Air Force Court of Criminal

Appeals affirmed.    United States v. Capel, No. ACM S31819, 2011

CCA LEXIS 367, at *19, 2011 WL 6372876, at *6 (A.F. Ct. Crim.

App. Dec. 16, 2011).

     We granted review on the following issue raised by

Appellant:

     I.      WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v.
             FOSLER AND UNITED STATES v. WATKINS IN FINDING THAT,
             DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL
             ELEMENT, THE ARTICLE 134 SPECIFICATION HERE STATES AN
             OFFENSE.

We also specified the following issue:

     II.     WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN
             APPELLANT’S CONVICTION FOR MAKING A FALSE OFFICIAL
             STATEMENT, ARTICLE 107, UCMJ, UNDER THIS COURT’S
             DECISION IN UNITED STATES v. TEFFEAU, 58 M.J. 62
             (C.A.A.F. 2002), AND UNITED STATES v. DAY, 66 M.J. 172
             (C.A.A.F. 2008).
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United States v. Capel, No. 12-0320/AF


Our discussion of this case focuses on the specified issue.     We

conclude that the statements at issue here are not official for

the purposes of Article 107, UCMJ.1

                              BACKGROUND


     On August 23, 2009, Appellant went to Staff Sergeant (SSgt)

Troy Addison’s home to play video games and have a few drinks.

Having had too much to drink, Appellant slept on a recliner in

SSgt Addison’s living room.    According to SSgt Addison, he left

his wallet with his debit card on his kitchen counter.   When he

awoke the next morning Appellant was gone.

     Several days later, SSgt Addison checked his banking

account information online and noticed transactions that he did

not recognize with six different businesses at which he had not

used his card.   The unauthorized charges totaled $2100.00.   SSgt

Addison recalled that Appellant had spent the night six days

earlier and had access to his wallet and debit card.   Suspecting

Appellant, SSgt Addison called Verizon Wireless, where one of

the unauthorized transactions had occurred.   He provided the

operator with Appellant’s phone number and asked if there had




1
  The granted issue relates to the three specifications under
Charge III alleging violations of Article 134, UCMJ. In light
of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we
remand this issue to the Air Force Court of Criminal Appeals for
a prejudice analysis.
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United States v. Capel, No. 12-0320/AF


been a recent payment on the account.    The operator verified

that the amount of Appellant’s phone bill matched the dollar

amount charged to SSgt Addison’s debit card.

       SSgt Addison first reported these offenses to his “shop

chief” who “contacted the [first sergeant].”    They told SSgt

Addison to cease contact with Appellant and to “go downtown and

file an official report.”    SSgt Addison proceeded to the

Valdosta Police Department and filed a complaint.       He also filed

a complaint with Bank of America, his checking account holder.

       The Valdosta police initiated an investigation into SSgt

Addison’s complaint and found that Appellant had used SSgt

Addison’s debit card to pay for bills and make purchases at a

variety of online stores.    Detective Robert L. Renfroe spoke

with Appellant by telephone and arranged an interview.      During

the interview with Detective Renfroe, Appellant waived his

rights, made several exculpatory statements and ultimately

denied using SSgt Addison’s debit card.    Additionally, Appellant

signed a written statement that contained the following, “I did

not under any circumstances use his card for any purpose.”2



2
    The specification at issue alleged the following:

       Specification: In that SENIOR AIRMAN CHADRICK L. CAPEL . .
       . did, at or near Valdosta, Georgia, on or about 3 December
       2009, with intent to deceive, sign an official document, to
       wit: A Valdosta Police Department Witness Statement, where
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United States v. Capel, No. 12-0320/AF


Later, Appellant surrendered himself to civilian authorities and

was detained overnight.    At some point, civilian authorities

decided not to prosecute Appellant.   The record does not

indicate when Detective Renfroe notified the Air Force Office of

Special Investigations or other military authorities, or whether

he notified them at all.

       At his court-martial, Appellant testified that he never

used SSgt Addison’s debit card number without authorization and

again stated that SSgt Addison had agreed to pay his bills for

him.   He further claimed that SSgt Addison had agreed to

purchase a laptop computer for him in exchange for a PlayStation

3 game console, helped him select a Toshiba Satellite laptop

from BestBuy.com, and gave him his debit card number over the

phone for payment.

       SSgt Addison, on the other hand, testified that although he

had lent cash to Appellant in the past, he never used his debit

card to pay for Appellant’s bills.    Specifically, SSgt Addison

stated that he had not paid for a laptop from BestBuy.com, or

paid a water bill, a cable bill, or a cell phone bill on

Appellant’s behalf.   SSgt Addison also testified that he never


       the said SENIOR AIRMAN CHADRICK L. CAPEL claimed that he
       never used the debit card of Staff Sergeant Troy Addison,
       which document was totally false and was then known by the
       said SENIOR AIRMAN CHADRICK L. CAPEL to be false.

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United States v. Capel, No. 12-0320/AF


used his debit card to make these payments or purchases for

Appellant.   The members resolved this apparent conflict against

Appellant and he was convicted.

                            DISCUSSION

     In United States v. Spicer, __ M.J. __ (C.A.A.F. 2013), we

set forth a framework for determining whether an accused’s false

statements qualify as official statements for the purposes of

Article 107, UCMJ, particularly when such statements are made to

civilian authorities.3   In such a case, an accused may make a

false official statement for the purposes of Article 107, UCMJ,

if the statement is made “‘in the line of duty,’ or to civilian

law enforcement officials if the statement bears a ‘clear and

direct relationship’ to the [accused’s] official duties.”

Spicer, __ M.J. at __ (12) (citations omitted); United States v.

Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003).   Similarly, the

statement at issue may be official for such purposes if the one



3
  Specifically, in Spicer, we determined that a statement could
be considered official when it fell into one of three
categories: (1) where the speaker “make[s] a false official
statement in the line of duty or . . . the statement bears a
clear and direct relationship to the speaker’s official duties”;
(2) where the listener “is a military member carrying out a
military duty at the time the statement is made”; or (3) where
the listener “is a civilian who is performing a military
function at the time the speaker makes the statement.” __ M.J.
at __ (12) (internal quotation marks and citations omitted).

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United States v. Capel, No. 12-0320/AF


to whom the statement is made “is a civilian who is performing a

military function at the time the [accused] makes the

statement.”   Spicer, __ M.J. at __ (12).   Here, the record is

devoid of any evidence to indicate that Appellant’s appearance

at the police station and his subsequent statements to Detective

Renfroe were pursuant to any specific military duties on

Appellant’s part.    Likewise, there is nothing in this record to

indicate that at the time Appellant made the statements,

Detective Renfroe was acting on behalf of military authorities

or that he was in any other way performing a military function.

     The offense in question occurred off base.    Appellant’s

command referred him to the local civilian police for resolution

of the matter.   And, while theft among military personnel can

certainly impact unit morale and good order and discipline, it

is the relationship of the statement to a military function at

the time it is made –- not the offense of larceny itself –- that

determines whether the statement falls within the scope of

Article 107, UCMJ, as opposed to 18 U.S.C. § 1001 (2006), or an

equivalent state statute.   Therefore, we hold that Appellant’s

statements were not “official statements” for the purposes of

Article 107, UCMJ.




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United States v. Capel, No. 12-0320/AF


                              DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Charge I and the

specification thereunder, and as to Charge III and the

specifications thereunder.   Charge I and its specification are

dismissed.    The findings of guilty to Charge II and the

specifications thereunder are affirmed.   The record of trial is

returned to the Judge Advocate General of the Air Force for

remand to the Court of Criminal Appeals for a determination of

whether Appellant has demonstrated prejudice in light of United

States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), with respect

to the specifications under Charge III, and if appropriate, for

reassessment of the sentence.   If necessary, a rehearing may be

authorized.




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United States v. Capel, No. 12-0320/AF


     STUCKY, Judge (concurring in part and dissenting in part):

     The plain and clear language of Article 107, Uniform Code

of Military Justice (UCMJ), proscribes the making of “any other

false official statement.”   10 U.S.C. § 907 (2006).   Appellant’s

statements to civilian law enforcement agents, investigating

allegations of criminal conduct as part of their official

duties, were “official statements.”   See United States v.

Spicer, __ M.J. __ (4) (C.A.A.F. 2013) (Stucky, J., dissenting).

Therefore, I would affirm the judgment of the United States Air

Force Court of Criminal Appeals (CCA) affirming Appellant’s

conviction for making false official statements.

     I concur in setting aside the judgment of the CCA with

respect to Charge III and its specifications and remanding for

further consideration in light of United States v. Humphries, 71

M.J. 209 (C.A.A.F. 2012).
