                           ****CORRECTED COPY – DESTROY ALL OTHERS****



           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                             Airman EDWARD J. WAGNER, IV
                                  United States Air Force

                                             ACM S32076

                                         04 November 2013

         Sentence adjudged 21 June 2012 by SPCM convened at Davis-Monthan Air
         Force Base, Arizona. Military Judge: William Muldoon.

         Approved Sentence: Bad-conduct discharge, confinement for 15 days, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Brian C. Mason; and Gerald R.
         Bruce, Esquire.

                                                  Before

                            ROAN, MARKSTEINER, and WIEDIE
                                Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



WIEDIE, Judge:

       At a special court-martial, the appellant was convicted, consistent with his plea, of
one specification of larceny of nonmilitary property of a value of more than $500; and
contrary to his plea, he was convicted of an additional specification of larceny of
nonmilitary property of a value of more than $500, both in violation of Article 121,
UCMJ, 10 U.S.C. § 921. Contrary to his plea, he was also convicted of one specification
of making a false official statement, in violation of Article 107, UCMJ, 10 U.S.C. § 907.
A panel of officer members adjudged a sentence of a bad-conduct discharge, confinement
for 15 days, and reduction to E-1. The convening authority approved only so much of the
sentence as provided for a bad-conduct discharge.1

      On appeal, the appellant asserts the evidence is legally and factually insufficient to
support his conviction of making a false official statement. We agree.

                                                 Background

       The general facts in this case are not in question. In August 2011, the appellant
stole an auto trailer that belonged to Staff Sergeant (SSgt) KL. Then in February 2012,
the appellant stole another auto trailer, this one belonging to Master Sergeant (MSgt) KS.
Both auto trailers were valued at over $500. The appellant’s theft of MSgt KS’s trailer
was discovered first and, on 14 March 2012, the appellant received nonjudicial
punishment under Article 15, UCMJ, 10 U.S.C. § 815, for stealing the trailer. When the
appellant’s larceny of the other trailer was discovered, charges for both larcenies as well
as for making a false official statement were referred to trial by court-martial.

       Detective SS of the Tucson Police Department interviewed the appellant at his off-
base home concerning a third stolen trailer. Upon arriving at the appellant’s home,
Detective SS did not see the trailer whose theft he was investigating, but he did see a
black trailer. When he asked the appellant about the black trailer sitting in front of his
house, the appellant told Detective SS that he bought it off of Craig’s List from a “fat
Mexican named Carlos.” In fact, the black trailer in question turned out to be the trailer
stolen from SSgt KL.

       There was no evidence introduced at trial that the appellant was in the line of duty
when he made the statement about how he got the black trailer or that the statement had
any relation to his official duties. Although the theft of the trailer had been reported to
military authorities six months earlier, there was no evidence introduced at trial that
Detective SS was performing a military function or acting on behalf of military
authorities when he questioned the appellant.

                                     Factual and Legal Sufficiency

       On appeal, the appellant argues that the evidence was factually and legally
insufficient to support his conviction of false official statement based on the Court of
Appeals for the Armed Forces’ recent decisions in United States v. Capel,
71 M.J. 485 (C.A.A.F. 2013) and United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013).
The Government concurs with the appellant’s position. We also concur.

1
  The original Action and Court-Martial Order incorrectly stated the sentence adjudged by the members. Pursuant to
this Court’s Order, a new Action and Court-Martial Order were accomplished, correctly reflecting the adjudged and
approved sentences.


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        In Spicer and Capel, our superior court set forth a framework for determining
whether an appellant’s false statements qualify as official statements for the purposes of
Article 107, UCMJ, particularly when such statements are made to civilian authorities. In
order for a statement to be “official” it must fall into one of three categories: (1) where
the speaker “make[s] a false official statement in the line of duty or to civilian law
enforcement officials if the statement bears a clear and direct relationship to the speaker’s
official duties;” (2) where the “hearer is a military member carrying out a military duty at
the time the statement is made;” or (3) where the “hearer is a civilian who is performing a
military function at the time the speaker makes the statement,” Spicer, 71 M.J. at 474-75
(internal quotation marks and citations omitted), or is “acting on behalf of military
authorities,” Capel, 71 M.J. at 487.

        In the present case, the statement that served as the basis for the false official
statement specification was clearly not an “official” statement. At the time the appellant
made the statement, he was not acting in the line of duty nor did the statement bear any
relationship to his official duties. At the time he was questioned by Detective SS, he was
off duty at his off-base residence. The questions asked by Detective SS had no
connection to the appellant’s position or duties in the Air Force. Detective SS was a
civilian law enforcement official and, thus, was not a military member carrying out a
military duty at the time the statement was made. Although the theft of the trailer at issue
had been reported to military authorities, Detective SS was not acting at the behest of the
military when he interviewed the appellant. To the contrary, he was investigating the
theft of a different trailer when he uncovered the appellant’s larceny of the trailer that
served as the basis for one of the two larceny specifications in this case. He was not a
civilian performing a military function at the time the appellant made the false statement
and he was not acting on the behalf of military authorities.

       Based on the fact that the statement in question was not an “official statement” for
the purposes of Article 107, UCMJ, the evidence was legally and factually insufficient to
support the appellant’s conviction for that offense.

                                  Sentence Reassessment

        Having found error, we must assess the impact on the sentence and either return
the case for a sentence rehearing or reassess the sentence ourselves. Before reassessing a
sentence, we must be confident “that, absent the error, the sentence would have been of at
least a certain magnitude.” United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)
(citing United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)). A “dramatic change in
the ‘penalty landscape’” lessens our ability to reassess a sentence. United States v. Riley,
58 M.J. 305, 312 (C.A.A.F. 2003). Ultimately, a sentence can be reassessed only if we
“confidently can discern the extent of the error’s effect on the sentencing authority’s
decision.”      United States v. Reed, 33 M.J. 98, 99 (C.M.A. 1991), aff'd,


                                              3                                  ACM S32076
36 M.J. 43 (C.M.A. 1992) (mem.). Even within this limit, the Court must determine that
a sentence it proposes to affirm is “appropriate,” as required by Article 66(c), UCMJ,
10 U.S.C. § 866(c). In short, a reassessed sentence must be purged of prejudicial error
and also must be “appropriate” for the offense involved. Sales, 22 M.J. at 307-08.

       We are confident that we can reassess the sentence in accordance with the above-
discussed authority. Setting aside the Additional Charge does not change the maximum
punishment the appellant faced, which is the jurisdictional limit of the special court-
martial. Thus, the penalty landscape is not substantially changed by the dismissal of this
Charge.

        Furthermore, our review of the record reveals that the appellant’s larceny of the
trailers from his fellow Airmen was the primary focus of the Government’s sentencing
case. The Government called two witnesses in sentencing, the victims of the thefts. No
aggravation evidence was introduced concerning the false official statement. Although
assistant trial counsel referenced the false official statement several times in his
sentencing argument, little emphasis was placed on the false official statement in
justifying the Government’s recommended sentence.2

       After careful consideration of the entire record, we are satisfied beyond a
reasonable doubt that in the absence of the Additional Charge and its Specification, the
members would have rendered a sentence no less than that adjudged at trial. We are
further satisfied that, in the absence of the Additional Charge and its Specification, the
convening authority would have approved a sentence no less than that which was
approved, which approved only the bad-conduct discharge and not the confinement or
reduction.

        Furthermore, we have given individualized consideration to this particular
appellant, the nature and seriousness of the offenses of which he was convicted, the
appellant’s record of service, and all other matters properly before the panel in the
sentencing phase of the court-martial. See United States v. Snelling, 14 M.J. 267,
268 (C.M.A. 1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006),
aff’d, 65 M.J. 35 (C.A.A.F. 2007). We find that the adjudged and approved sentence was
appropriate in this case and was not inappropriately severe.

                                                   Conclusion

      The finding of guilty to the Additional Charge and its Specification is set aside and
dismissed. The remaining findings and the sentence, as reassessed, are correct in law and

2
  Assistant trial counsel recommended that the members sentence the appellant to a punishment that included, in
part, confinement for 240 days. Assistant trial counsel argued that the appellant should be confined 233 days for the
larcenies and 7 days for the false official statement.


                                                         4                                             ACM S32076
fact, and no error materially prejudicial to the substantial rights of the appellant remains.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
remaining findings and sentence, as reassessed, are

                                         AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




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