United States v. Warthen

Opinion of the Court Robert E. Quinn, Chief Judge: A general court-martial at Vanden-berg Air Force Base, California, convicted the accused of wrongful appropriation of a Government vehicle and falsely making an official pass, in violation of Articles 121 and 134, respectively, Uniform Code of Military Justice, 10 USC §§ 921, 934. It imposed a sentence which includes a bad-conduct discharge and confinement at hard labor for twelve months. Intermediate appellate authorities affirmed the sentence. We granted review to consider the instructions on the maximum punishment for the false pass charge. The law officer instructed the court members on the legal limits of punishment and other matters they could consider in determining an appropriate sentence. In part, he advised them that the maximum punishment for the false pass offense extended to confinement at hard labor for three years. No objection was made by the defense at that time, but the correctness of the instruction is now challenged on the ground that the offense found is merely a simple disorder which carries a maximum confinement of four months. The Uniform Code does not deal in specific terms with pass violations. However, certain acts relating to a pass are prohibited in the Federal Penal Code (18 USC §499). These are incorporated into military law by Article 134. Additionally, Article 134 covers other pass violations which discredit the armed forces or prejudice good order and discipline. United States v Blue, 3 USCMA 550, 13 CMR 106. The Table of Maximum Punishments, [94] Manual for Courts-Martial, United States, 1951, sets out a three-year period of confinement for “making, using, altering, possessing, selling, or otherwise disposing of,” a false pass. In the Blue case we noted that this listing is merely a convenient short form of description and does not define the essential elements of the pass offenses punishable by three years. Accordingly, we held possession of a false pass without an accompanying intent to deceive was punishable not as a three-year offense, but only as a simple disorder which carries a maximum confinement of four months. Here, the specification alleges that the accused “wrongfully and falsely” made an official pass representing that he was a member of the Office of Special Investigations and had “Special Off Duty” liberties. There is no allegation that the instrument was made with intent to deceive. Appellate defense counsel observe that the specification may be sufficient as a form of pleading. Cf. Manual for Courts-Martial, United States, 1951, appendix 6c, form 138, page 490. They frankly and freely concede that the word “falsely” can imply an intent to deceive and may be sufficient to charge a three-year offense. However, they contend that “falsely” can also be interpreted to mean only that the thing represented is untrue, and that the untruthfulness may be a result of carelessness, mistake, or accident, rather than an intention or design to deceive. See State v Foster, 355 Mo 557, 197 SW 2d 313, 324; Metropolitan Life Insurance Co. v Adams, 37 Atl 2d 345, 350 (Mun App DC). Consequently, the defense maintains, the court-martial might have based its verdict of guilty on a finding that the accused made a false pass, but had no intent to deceive. Thus, in its view, the offense found is only making a false pass without an intent to deceive, which is punishable only as a disorder.1 Attempting to cut through the instructional problem presented by the defense approach, Government counsel contend that the mere making of a false pass is a three-year offense, without regard to the existence or absence of an intent to deceive. They maintain that the several acts constituting pass violations, as specified in the basic Federal statute, 18 USC § 499, are separate and distinct, and that the prohibition against the false making of a pass requires no intent to deceive. They divide the statute2 into four classes of crimes as follows: “Whoever [1] falsely makes, forges, counterfeits, alters, or tampers with any naval, military, or official pass or permit, issued by or under the authority of the United States, or [2] with intent to defraud uses or possesses any such [any naval, military, or official pass or permit, issued by or under the authority of the United States] pass or permit, or [3] personates or falsely represents himself to be or not to be a person to whom such [any naval, military or official pass or permit, issued by or under the authority of [95] the United States] pass or permit has been duly issued, or [4] willfully allows any other person to have or use any such [any naval, military, or official pass or permit, issued by or under the authority of the United States] pass or permit, issued for his use alone. . . [Emphasis supplied.] Since class (1) in their enumeration does not contain the words “intent to deceive” or any “requirement” of willfulness, Government counsel conclude that neither is an element of the offense. The terms of the statute they say are plain and explicit and are, therefore, to be strictly construed. In United States v Ariola, 2 USCMA 637, 10 CMR 135, we pointed out that the word “false” is not used in the same way in all statutes. In one case it may mean merely that which is incorrect or untrue; in another it may mean what is intentionally untrue. In the opinion of my brothers, the former is what is meant by the statute before us. Under this view, it would appear that the making of a pass containing known false information is a three-year offense, although concededly made as a mere joke or for some other innocent purpose. However, the Court of Appeals for the Second Circuit has indicated that a different rule might apply in a case of this kind. In United States v Achtner, 144 F2d 49 (CA2d Cir) (1944), it had before it a statute making it an offense for an alien to “falsely represent” himself to be a citizen. In pertinent part the court said: “. . . it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, and the use of the words ‘knowingly’ and ‘falsely’ implies otherwise. Thus, it is said that the word ‘falsely’ particularly in a criminal statute, suggests something more than a mere untruth and includes ‘perfidiously’ or ‘treacherously,’ Dombroski v Metropolitan Life Ins. Co. 126 NJL 545, 19 A2d 678, 680, 20 A2d 441; 35 CJS, Falsely, pp 626, 627, or ‘with intent to defraud,’ as has been held with respect to the counterfeiting laws, United States v Otey, CC Ore, 31 F 68; . . I prefer to approach the problem before us on the narrow ground urged by the accused; that is, from the standpoint of the instructions. The implication of an evil intent is implicit in the word “falsely.” As the Otey case points out, the maker’s state of mind is “'prima facie to be inferred” from the facts stated and if it is no “part of the statutory definition of the offense,” it need not be alleged. The word “falsely” as used in an instruction “cannot be construed otherwise than to mean something designedly untrue or deceitful, and as involving an intention to perpetrate some fraud.” Fouts v State, 113 Ohio St 450, 149 NE 551, 554. The instruction in this case defines the word further. The definition includes some matter that is immaterial to the issues, e.g., omissions of a material fact; but it makes clear that the court-martial must find beyond a reasonable doubt “something more than a mere untruth.” The findings are, therefore, consistent with the charge and support a three-year sentence. The law officer’s instructions to that effect are correct. The decision of the board of review is affirmed. Footnotes [1] Part of the instruction is as follows: “The court is advised that certain terminology used in the Specification of Additional Charge regarding wrongfully and falsely — the court is advised that falsely means that which is not true, that which is misleading or something more than a mere untruth. The word false oftentimes connotes the intent to deceive. It can and does mean, in connection with the word falsely, a failure to state a material fact or an omission to state a material fact.” [2] 18 USC § 499 provides as follows: “Whoever falsely makes, forges, counterfeits, alters, or tampers with any naval, military, or official pass or permit, issued by or under the authority of the United States, or with intent to defraud uses or possesses any such pass or permit, or person-ates or falsely represents himself to be or not to be a person to whom such pass or permit has been duly issued, or willfully allows any other person to have or use any such pass or permit, issued for his use alone, shall be fined not more than $2,000 or imprisoned not more than five years or both.”