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U.S. Army Court of Military Review • 1990

United States v. Oglivie

29 M.J. 1069 | 1990 CMR LEXIS 126 | 1990 WL 13606

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Takeaway

In short, this case distinguishes an honest mistake, which defeats a specific-intent false-statement charge, from an unreasonable mistake, which does not excuse bigamy, and it limits Article 134's public-record offense to actual public records rather than unofficial altered copies.

Background

While stationed in Panama, Oglivie married Amparo. After he was reassigned to Germany and later Fort Sill, Oklahoma, he had limited contact with her. He filed for divorce in Oklahoma, but in the fall of 1988 Amparo told him by telephone that she had filed for divorce in Panama, that there was "nothing between" them, and that he need not worry about her. A Red Cross notice later referred to Amparo as his "ex-wife."

Believing he was divorced, Oglivie asked the Fort Sill finance office to stop paying him basic allowance for quarters at the with-dependents rate. When a clerk required a divorce decree, he copied another sergeant's decree, substituted his and Amparo's names in its text, and submitted the altered photocopy. In December 1988, he married Jackeline and requested reinstatement of his with-dependents allowance.

A military judge sitting as a special court-martial convicted Oglivie, pursuant to his guilty plea, of altering a public record under Article 134. Contrary to his pleas, the judge also convicted him of two specifications of making false official statements, wrongful appropriation of a copy of a divorce decree, and bigamy. The approved sentence included a bad-conduct discharge, three months' confinement, and reduction to Private E-1. On review, the court considered the sufficiency of the false-statement convictions, the bigamy conviction, and whether Oglivie's guilty plea to altering a public record was provident.

Issues

Issue #1

Whether the evidence proved that Oglivie knowingly made false official statements when he told finance officials that he was divorced from Amparo and married to Jackeline.

Holding

No. Oglivie's honest mistake of fact about his divorce was a complete defense to both false-official-statement specifications.

Reasoning

Making a false official statement under Article 107 is a specific-intent offense. Therefore, an honest mistake about whether the statement is true defeats the required intent, even if that belief was unreasonable.

The record raised an honest-mistake defense. Amparo told Oglivie that she had filed for divorce and that nothing remained between them; the Red Cross called her his "ex-wife"; and Oglivie himself tried to terminate his dependent-rate housing allowance because he believed he was divorced. He also went through a marriage ceremony with Jackeline and received a marriage certificate.

The government did not disprove Oglivie's honest belief beyond the evidence in the record. Because that belief negated the specific intent required by Article 107, the court set aside and dismissed both false-official-statement specifications.

Issue #2

Whether Oglivie's belief that he was divorced from Amparo excused his subsequent marriage to Jackeline from bigamy liability.

Holding

No. Although Oglivie may have honestly believed he was divorced, his belief was not reasonable, as bigamy requires for a mistake-of-fact defense.

Reasoning

Bigamy is a general-intent offense. Unlike the Article 107 charges, a mistake of fact excuses bigamy only if the accused's belief was both honest and objectively reasonable.

Oglivie did not take the steps a reasonable person would take to verify that a divorce had actually been granted. Amparo's statement that she had filed for divorce did not establish that the proceedings had ended or that a decree had issued.

Military precedent makes clear that knowledge a spouse intends to seek divorce, or reliance on a prediction that a divorce will occur, is insufficient. Oglivie's reliance on Amparo's statements and the Red Cross reference to her as an ex-wife therefore did not make his assumption reasonable. The evidence was sufficient to sustain the bigamy conviction.

Issue #3

Whether creating and altering an unofficial, unauthenticated photocopy of a divorce decree, without changing the original record, constitutes altering a public record under Article 134.

Holding

No. The altered photocopy was not itself a public record, so Oglivie's guilty plea to altering a public record was improvident and did not establish a lesser included offense.

Reasoning

The Article 134 offense is substantially identical to 18 U.S.C. § 2071, except that the military provision expressly includes altering public records. Its central purpose is to protect the government's use and integrity of its own records against conduct such as concealment, removal, destruction, or alteration.

The Manual's definition of public record includes records in "any form," but that language does not expand the offense to every unofficial reproduction of a government document. Instead, it recognizes that genuine public records may exist in non-paper formats, such as microfiche, videotapes, and computer media.

Oglivie altered only an unauthenticated copy of another person's divorce decree. He did not alter, remove, conceal, or otherwise disturb the actual public record. The court declined to decide whether an authenticated copy would qualify, but held that the unofficial photocopy in this case did not.

Submitting the altered document to finance officials might have violated another provision, such as a fraud-related statute or false-claim prohibition. But it was not altering a public record under Article 134, nor did it constitute a lesser included offense. The court therefore set aside and dismissed that specification.