UNITED STATES v. Airman First Class Billy Joe GALCHICK, United States Air Force, 52 M.J. 815

OPINION OF THE COURT HEAD, Judge: Contrary to his pleas, the appellant was-convicted by a general court-martial, composed of officer members, of wrongful use of methamphetamine and false swearing, in violation of Articles 112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934. His approved sentence is a bad-conduct discharge, 12 months’ confinement, and reduction to E-l. The appellant claims the military judge committed prejudicial error in failing to grant a motion to dismiss the false swearing charge for failure to state an offense.

Additionally, the appellant claims the evidence was factually insufficient to sustain the findings of guilty to wrongful use of methamphetamine and false swearing. We find the evidence was factually sufficient to sustain the finding of guilty to wrongful use of methamphetamine. However, although the specification states an offense, we set aside the appellant’s conviction on the false swearing charge because the evidence was legally insufficient to establish the elements of the offense. I. Failure To State An Offense The elements of the offense of false swearing are:

(1) That the accused took an oath or an equivalent;

(2) That the oath or equivalent was administered to the accused in a matter in which such oath or equivalent was required or authorized by law;

(3) That the oath or equivalent was administered by a person having authority to do so;

(4) That upon this oath or equivalent the accused made or subscribed a certain statement;

(5) That the statement was false;

(6) That the accused did not then believe the statement to be true; and

(7) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Appellant directs our attention to the military judge’s denial of appellant’s motion to dismiss for failure to state an offense. The essence of the motion was that the sworn statement, which was the subject of the additional charge, was given during an

Article 32 hearing, which was a judicial proceeding or a course of justice, and therefore could not be charged as false swearing. The focus of a motion to dismiss for failure to state an offense is the specification itself, not the fact that the accused may have some defense to the charge. United States v. Commander, 39 M.J. 972, 980 (A.F.C.M.R. 1994); United States v. Snyder, 428 F.2d 520, 522 (9th Cir.1970).

In order to avoid dismissal for failure to state an offense, a specification must contain the elements of the offense intended to be charged in sufficient detail to place the accused on notice of the allegation against which he must be prepared to defend and to provide a bar against a second trial for the same offense after acquittal or conviction of the offense. United States v. Sell, 11 C.M.R. 202, 206, 1953 WL 2005 (C.M.A.1953); see United States v. Schwarz, 15 M.J. 109, 111 (C.M.A.1983). In this particular case, the specification contained all of the elements of the charged offense and was sufficient.

The basis for the appellant’s argument is more properly a defense to the charge and a question of legal sufficiency as to the evidence supporting the charge. II. Legal And Factual Sufficiency

Article 66(c), UCMJ, 10 U.S.C. § 866(c), requires that we approve only those findings of guilty we determine to be correct in both law and fact. The test for legal sufficiency is whether, when the evidence is viewed in the light most favorable to the government, a reasonable factfinder could have found the appellant guilty of all elements of the offense beyond a reasonable doubt. United States v. Turner, 25 M.J. 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); United States v. Ladell, 30 M.J. 672, 673 (A.F.C.M.R.1990).

The test for factual sufficiency is whether, after weighing the evidence and making allowances for not having observed the witness, we ourselves are convinced of the appellant’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. On 14 May 1997, the appellant was charged with possession of marijuana and use of methamphetamine. On 16 May 1997, an

Article 32 hearing was convened to investigate the appellant’s charges. During the

Article 32 hearing the appellant submitted a previously prepared written statement to the

Article 32 investigating officer (IO) for his consideration. The statement indicated that at no time in his life had the appellant used or possessed methamphetamine. Prior to signing the statement, the government representative at the

Article 32 hearing administered an oath to the appellant whereby the appellant swore that the written statement he was about to make was “the truth, the whole truth, and nothing but the truth, so help you God.” The appellant then signed the written statement at the

Article 32 hearing. While the bottom of the written statement indicated the language contained in it was true, the statement failed to say that the appellant made the statement under penalty of perjury. The appellant’s sworn statement was referenced by the 10 in his report during his discussion of the evidence concerning the appellant’s wrongful use of methamphetamine. Thereafter, on 24 July 1997, the government preferred an additional charge of false swearing against the appellant based upon his

Article 32 statement. A False Swearing Manual For Courts-Martial, United States (MCM),

Part IV, 1179(c) (1995 ed.) defines false swearing as “the making under a lawful oath or equivalent of any false statement, oral or written, not believing the statement to be true.” It does not include such statements made in a “judicial proceeding or course of justice.” This

section adopts the definition of judicial proceeding or course of justice found in the perjury discussion of the Manual, which references an

Article 32 investigation. MCM,

Part IV, 1157(

a) states that an individual may be prosecuted for perjury only if he testifies falsely under oath at a judicial proceeding or course of justice or, in such a forum, subscribes a false written statement made under penalty of perjury as permitted under 28 U.S.C. § 1746. Under this United States Code provision, the false statement must expressly contain language that the statement is being made under penalty of perjury. As previously mentioned, the Manual, in paragraph 57(c)(1) relating to perjury, defines “course of justice” as including an investigation conducted under

Article 32, UCMJ. We conclude the evidence was legally insufficient to support the appellant’s conviction for false swearing. There is no question that an

Article 32 pretrial investigation is a judicial proceeding or course of justice. San Antonio Express-News v. Marrow, 44 M.J. 706 (A.F.Ct.Crim.App.1996). Further, at an

Article 32 hearing, the accused has the right to submit a statement in any form. Rule for Courts-Martial (R.C.M.) 40509(12). However, if the accused elects to accomplish a sworn written statement while in the

Article 32 investigation, any falsity in that statement can be prosecuted as perjury only if that statement expressly subjects the individual to the penalty of perjury. MCM,

Part IV, 1157(c)(3). Further, should the written statement fail to subject the individual to the penalty of perjury, even if sworn, the falsity cannot be charged as false swearing. United States v. Smith, 26 C.M.R. 16,1958 WL 3282 (C.M.A.1958); United States v. Byard, 29 M.J. 803 (A.C.M.R.1989). In deciding Smith, the majority opinion overturned a long-standing military rule which recognized that false swearing could be committed in a judicial proceeding.

In his dissent, Judge Latimer pointed out that all Army and Air Force Manuals since 1921 had firmly supported the principle that false swearing was an offense different from perjury and that either offense could be committed in a judicial proceeding. However, some time between Judge Latimer’s dissent and the adoption of the 1969 Manual, the President decided to amend the Manual to follow the ruling in the Smith case. The 1969 Manual was adopted with specific language which prohibited false swearing from being charged if the offense took place in a judicial proceeding or course of justice. MCM,

Chapter XXVIII, 1Í 213(f)(4) (1969 ed.). Later, the language requiring a written statement be made under the penalty of perjury, in order to prosecute that perjury, was added by Public Law 94-550 of 1976 which amended

Article 131 by adding a second clause based on

section 1746 of Title 28 United States Code. This change was reflected in the 1984 Manual. MCM,

Part IV, 1157(a). In using this language in all subsequent editions of the Manual, we conclude that the President intended to grant the appellant greater protection than would otherwise be authorized under substantive criminal law. United States v. Davis, 47 M.J. 484, 486 (1998). In this particular case, the appellant voluntarily submitted a sworn written statement to the 10 for his consideration. The statement was not made subject to the penalty of perjury. Consequently, the appellant could not be found guilty of false swearing. Finally, this was not a situation where the sworn statement was made outside the confines of the

Article 32 investigation. In this particular case, the appellant swore to his statement, signed it and provided it to the 10 during the actual

Article 32 hearing. This situation should be distinguished from one where an individual provides a sworn statement to the Air Force Office of Special Investigations or Air Force Security Forces at one location on one date and thereafter the sworn statement is introduced at an

Article 32 hearing at another place and date. In this later situation, the false swearing would have occurred outside the

Article 32 hearing and thus would be subject to prosecution. B. Wrongful Use of Methamphetamine The appellant next asserts that the evidence was factually insufficient to sustain a conviction for wrongful use of methamphetamine. Although the appellant framed his issue as one of factual sufficiency, we note that in the conclusion of his brief, he asserts there is no factual or legal basis to sustain his conviction for wrongful use of methamphetamine. Accordingly, we have examined the evidence in this case for both factual and legal sufficiency.

We disagree with the appellant’s assertion that the evidence was neither legally nor factually sufficient to support his conviction for wrongful use of methamphetamine. In our view, a reasonable factfinder could conclude that the appellant committed the offense. Proof beyond a reasonable doubt as to an accused’s guilt does not mean that the evidence must be free of conflict. United States v. Steward, 18 M.J. 506 (A.F.C.M.R. 1984).

After hearing all of the evidence and observing the demeanor of the witnesses, the court members, after careful deliberation, found that the evidence established, beyond a reasonable doubt, the appellant’s guilt of wrongful use of methamphetamine. The fact that the members acquitted the appellant of wrongful possession of marijuana is indicative of the care they took to weigh the evidence. After reviewing the record of trial, we are convinced that the evidence was legally and factually sufficient to support the appellant’s conviction for wrongful use of methamphetamine. III.

Conclusion Consistent with our determination that the evidence was legally insufficient to support a conviction for false swearing, the finding of guilty is set aside and the additional charge and its specification are dismissed. We must now reassess the sentence or return the case for a rehearing on sentence. United States v. Jones, 39 M.J. 315 (C.M.A.1994); United States v. Peoples, 29 M.J. 426 (C.M.A.1990). We are confident we can determine the sentence, as the members would have adjudged, absent the false swearing charge and its specification.

We reassess the sentence by approving only so much of the sentence as includes a bad-conduct discharge, confinement for 8 months, and reduction to E-l. We have given individualized consideration to the seriousness of the conviction, the character and military performance of the appellant and all circumstances documented in the record of trial. United States v. Snelling, 14 M.J. 267 (C.M.A.1982). We believe that by affirming the sentence as reassessed, justice has been done and the appellant has received the punishment he deserves. United States v. Healy, 26 M.J. 394 (C.M.A.1988). IV.

Decretal The approved finding of guilty as to false swearing is reversed and that charge and its specification are set aside. The remaining finding of guilty, and the sentence, as modi-’ fied, are correct in law and fact. Accordingly, the findings and sentence, as modified, are AFFIRMED. Judge ROBERTS concurs. . The dissent attempts to distinguish the facts in the appellant’s case from those found in Smith. United States v. Smith, 26 C.M.R. 16, 1958 WL 3282 (C.M.A.1958). While Smith involved false testimony at a court-martial and the appellant’s case concerns a false written statement at an

Article 32 hearing, the pivotal point is that both offenses occurred under oath at a judicial proceeding. Accordingly, the proper charge is perjury because false swearing cannot be committed at a judicial proceeding. While the dissent would have us reject the holding in Smith, we decline to do so. Courts of Criminal Appeals are not generally free to ignore the precedents of their superior courts. United States v. Allbery, 44 M.J. 226, 227 (1996).

Further, "[a] precedent-making decision may be overruled by the court that made it or by a court of a higher rank.” Id. at 228 (quoting 20 Am.Jur.2d Courts § 186 (1965)). The majority concludes that based on the language contained in Smith, that language is absolutely binding on us. Finally, while the dissent asserts that false swearing is a lesser included offense of perjury, we conclude that we need not address this issue.

The President, through his approval of the wording in the Manual stating that false swearing does not include sworn statements made in a judicial proceeding or course of justice, has given the appellant a greater right than that conveyed by the Constitution or the Uniform Code of Military Justice. Accordingly, we will not disturb the President’s narrowing construction limiting the prosecution of false swearing. United States v. Davis, 47 M.J 484, 486 (1998). . We note that the appellant swore to the truthfulness of his written statement on two different occasions at the

Article 32 hearing. The first occasion was when he raised his right hand and took the oath from the government representative. The second time was when he signed the written statement which contained language that the statement was true. Since the appellant was not charged with peijuty, we need not address the question of whether the oath administered by the government representative would have been sufficient enough to subject the appellant to a charge of perjury.