Petition for Writ of Certiorari — England v. United States

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Jn the Supreme Court of the United States

OCTOBER TERM, 1991

STEPHEN K. ENGLAND, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

RICHARD W. ALDRICH

Captain, Air Force

Legal Services Agency

United States Air Force

HQ USAF/JAJD

bldg 5683

Bolling AFB, DC 20332-6128

Counsel of Record

JEREREY R. OWENS

Colonel, Air Force

Legal Services Agency

United States Air Force

December 199] Counsel for Petitioner

QUESTION PRESENTED

Whether the petitioner was denied his Fifth Amendment

right against self-incrimination when, prior to charges be-

ing filed against him, the petitioner was forced to answer

questions pursuant to a grant of immunity, and subse-

quently the Government attorney who took the immu-

nized statement from the petitioner assisted in the prepara-

tion of the case against him.

TABLE OF CONTENTS

Page

fo PCP E Oe ee ee l

SR as GS, wae Sea ae es l

Constitutional Provision Involved .............. 2

ROE Ae Oe eo has ba ee eee ee 2

Reasons for Granting the Writ... ......00....... 3

CD ls vate ei KR als Be ee 13

pT. Dee eer en tr la

PII one cc a oe ee Ta

PTABLE OF AUTHORITIES

CASES:

Kastigar v. United States, 406 U.S. 441

CRB TED 0 on boas Das ee eter eee passim

Murphy v. Waterfront Comm. of New York

Harbor, 378 U.S. 52 (1964) ...4.......... 4,13

United States v. Boyd, 27 M.J. 82 (C.M.A.

ee ee be 8, 9

United States v. Byrd, 765 F.2d 1524 (11th

Cir, SOS noc cd Pe be ee eee 4

United States v. Carpenter, 611 F. Supp. 768

C.D. Chek, WO a ade sac ae eee ees 4

United States v. Crowson, 828 F.2d 1427 (9th

Cir. 1987), cert. denied, 109 S. Ct. 87

CRGGRS So os hoe Seka eee 4

United States v. Eastman, 2 M.J5. 417

(AS ER. Ce 26 ieee, Sees 6-9

United States v. England, 33 M.J. 37 (C.M.A.

og | ee tr etek (m8 |

Cases — Continued: Page

United States v. England, 30 M.J. 1030

FOS a 8 SS _ e :

United States v. Gardner, 22 M.J. 28 (C.M.A.

TS ae are aie a eo oN kod ce wei weeks 6, 9, 10

United States v. Hampton, 775 ¥.2d 1479,

a 12

United States v. Mariani, 851 F.2d 595 (2d

EE ee ae 4

United States v. McDaniel, 482 F.2d 305, 311

Sa ee 4,5

United States v. North, 910 F.2d 843, modi-

fied, 920 F.2d 940 (D.C. Cir. 1990) ....... 6

United States v. Poindexter, No. 90-3125,

1991 U.S. App. LEXIS 26824 (D.C. Cir.

ae ee 6

United States v. Rivera, 23 U.S.C.M.A. 430,

50 C.M.R. 389, 1 M.J. 107 (1975)... 20... 7,8

United States v. Semkiw, 712 F.2d 891 (3d

en ees ge cee ww 0s 0's 4

United States v. Serrano, 870 F.2d 1, 16 (Ast

NS re Foe a gig xin & Soc y one hbo 4

United States v. Smith, 580 F. Supp. 1418

ee os a hae & eee os 4

Constitutional Provisions:

i i, 2-4

Statutory Authorities:

28 U.S.C. § 1259(3) (Supp. 1989) ........... |

Article 32, UCMJ, 10 U.S.C. § 832 (1988) ... 3, 7-9

Article 67a, UCMJ, 10 U.S.C. § 867a (Supp.

ER he oe l

hy

Statutory Authorities — Continued: Page

Article 112a, UCMJ, 10 U.S.C. § 912a

RE an rei ea a aaron ee 2

Miscellaneous:

oo OR ne aren ea 7

Humble, Nonevidentiary Use of Compelled

Testimony: Beyond the Fifth Amendment,

66 Tex. L. Rev. 351 (1987) 2.000000. 4

ee 7

Strachan, Self-Incrimination, Immunity, and

Watergate, 56 Tex. L. Rev. 791 (1978)... .. 4. 5

Jn the Supreme Court of the United States

OcTOBER TERM, 199]

No.

SthPHEN K. ENGLAND, PELIEIONER

V.

UNtttp STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI IO THI

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Stephen K. England, respectfully prays

that a writ Of certiorari issue to review the judgment of the

United States Court of Military Appeals entered tn his case

on September 3, 1991.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 33 M.J. 37 (C.M.A. 1991) (Appendix

B). The United States Air Force Court of Military Review

issued a decision on May 25, 1990, reported at 30 M.J.

1030 (A.F.C.M.R. 1990) (Appendix A).

JURISDICTION

The tinal order of the United States Court of Military

Appeals was entered on September 3, 1991. The jurisdic-

tion Of this Court is invoked under Article 67a of the Unt-

torm Code of Military Justice (UCMJ), 10 U.S.C. § 8674

(Supp. 1989) and 28 U.S.C. § 1259(3) (Supp. 1989).

te

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Phe kitth Amendment provides in pertinent part:

No person shall be . . . compelled in any criminal case

to be a witness against himself, nor be deprived ot

lite, liberty or property, without due process of law

Article L12a, UCMJ, 10 U.S.C. § 912a (1988), provides

In perunent part:

(a) Any person subject to this chaper who wrongtully

uses, . . . a substance described in subsection (b) shall

be punished as a court-martial may direct.

(b) The substances referred to in subsection (a) are the

following:

(i)... cocaine, ..

STATEMENT OF THE CASE

On June 2, 1989 an airman in the appellant’s military

unit died of a drug overdose. Subsequent urinalysis testing

of the members of appellant’s unit resulted in a positive

urinalysis for cocaine on Airman Brister. F

On June 30, 1989 Airman Brister provided a confession

to Special Agent Collier of the Air Force Office of Special

Investigations (OSI) also implicating the appellant, Air-

man Maish, and others. Hours after Airman Brister’s in-

terview, the appellant submitted to an OSI interview ad-

mitting to two uses of cocaine, neither of which was sup-

ported by the earlier confession of Airman Brister. Thus,

contra the holding of both courts below, the Government

did nor have all the facts necessary to convict the appellant

in place prior to the appellant’s immunized statement.

On September 18, 1989 the appellant was granted

testimonial immunity to submit to questioning regarding

Airman Maish’s use of cocaine. On September 26, 1989

Captain Tomanelli and Captain Sakellis conducted an in-

terview of the appellant pursuant to that grant of im-

munity.

On October 17, 1989 Captain Tomanelli revealed the

essence Of the immunized testimony to Major Reusch,

who subsequently preferred charges against the appellant.

Captain Tomanelli administered the oath for the preferral.

On the same date, Captain Tomanelli served as the

Government’s representative at the hearing held pursuant

to Article 32, UCMJ, 1O U.S.C. § 632 (1988), to determine

if sufficient grounds existed to bring the appellant to trial

by court-martial. Thereafter, Captain Tomanelli acted in

the role of prosecutor.

In tate October/early November Lieutenant Colonel

Tomes, the Ninth Air Force Staff Judge Advocate (legal

advisor to the general court-martial convening authority),

directed Captain Tomanelli to cease acting in the role ot

prosecutor in the instant case. While removing himself in

name, Captain Tomanelli continued to participate in the

case In an advisory capacity up to the very day ot trial.

On November 21, 1989 the appellant was brought to

trial. At trial, the appellant moved to dismiss “on the

grounds that... [his] trial ha{d] been tatally tainted by

the participation of government counsel after the

accused’s immunized statements were taken.” After the

military judge denied the motion, the appellant entered

conditional pleas of guilty, preserving his right to appeal!

the military judge’s adverse decision on this issue.

REASONS FOR GRANTING THE WRIT

The writ should be granted to resolve tc divisive split in

the courts On the issue of whether the Fitth Amendment

precludes the use of nonevidentiary fruits of an interroga-

tion compelled under a grant of immunity. The split is

4

acknowledged in the fairly recent First Circuit case of

United States v. Serrano, 870 F.2d 1, 16 (1st Cir. 1989):

To what extent the Fifth Amendment’s privilege

against self-incrimination bars the nonevidentiary use

of immunized testimony is a difficult question.

Ne.ther Murphy [v. Waterfront Comm. of New York

Harbor, 378 U.S. 52 (1964)] nor Kastigar [v. United

States, 406 U.S. 441 (1972)] addressed this question,

and lower courts have disagreed on the issue. Com-

pare United States v. Semkiw, 712 F.2d 891 (3d Cir.

1983); [United States v.] McDaniel, 482 F.2d 305

{(8th Cir. 1973)]; Usted States v. Carpenter, 611 F.

Supp. 768 (N.D. Ga. 1985); United States v. Smith,

580 F. Supp. 1418 (D.N.J. 1984) (all requiring gov-

ernment to show no nonevidentiary use of immunized

testimony) with United States v. Mariani, 851 F.2d

595 (2d Cir. 1988); United States v. Crowson, 828

F.2d 1427 (9th Cir. 1987), cert. denied, 109 S. Ct. 87

(1988); United States v. Byrd, 765 F.2d 1524 (11th

Cir. 1985) (all rejecting claim that nonevidentiary use

warranted dismissal of indictment). The commen-

tators are also divided over this issue. Compare Hum-

ble, Nonevidentiary Use of Compelled Testimony:

Beyond the Fifth Amendment, 66 Tex. L. Rev. 351

(1987) (arguing that Fifth Amendment prohibits only

evidentiary uses of immunized testimony) with

Strachan, Self-Incrimination, Immunity, and

Watergate, 56 Tex. L. Rev. 791 (1978) (discussing

dangers of nonevidentiary use of immunized testi-

mony and arguing for transactional immunity to

avoid these dangers).

The Air Force Court of Military Review and the United

States Court of Military Appeals decided a question of law

which has not yet been, but should be, settled by this

4)

Court, namely, whether immunity protections extend only

to evidentiary uses of an individual’s immunized

statements Or to nonevidentiary uses as well.

Nonevidentiary uses have been described as “con-

celvably includ[ing] assistance in focusing the investiga-

tion, deciding to initiate prosecution, refusing to plea

bargain, interpreting evidence, planning cross-examina-

tion, and otherwise generally planning trial strategy.”

United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.

1973). The Air Force Court of Military Review conceded

that Captain Tomanelli continued to advise the pros-

ecutors and actively participate in the case affer he took

the immunized testimony from the appellant. United

States v. England, 30 M.J. 1030, 1031-32 (A.F.C.M.R.

1990). Captain Tomanelli also admitted to helping plan

trial strategy, and the record makes clear that the case was

not preferred until well after the immunized testimony was

obtained. The court, nevertheless, upheld the trial court’s

decision on the basis that no evidentiary uses were made ot

such knowledge. Whether a motion to dismiss can be sup-

ported by nonevidentiary uses of immunized testimony ts

an issue which this Court has not addressed directly, and

which the lower courts are deeply divided over.

Arguably, the opinions below contravene earlier direc-

tions of this Court, since in Kastigar, supra, “the Court

emphasized that use and derivative use immunity pro-

hibited prosecutorial authorities from using compelled

testimony ‘in any respect’; and that the statute provided ‘a

sweeping proscription of any use’; and a ‘total prohibition

of use.’ ” Strachan, Self-Incrimination, Immunity, and

Watergate, 56 Tex. L. Rev. 791, 807 (1978) (emphasis in

original, footnotes omitted). “AKastigur does not prohibit

simply ‘a whole lot of use,’ or ‘excessive use,’ Or ‘primary

use’ of compelled testimony,” it prohibits “any use, direct

6

or indirect.” United States v. North, 910 F.2d 843, 861

{North I}, modified, 920 F.2d 940 (D.C. Cir. 1990) [North

11}. Accord United States v. Poindexter, No. 90-3125,

1991 U.S. App. LEXIS 26824 (D.C. Cir. Nov. 15, 1991).

Both the Air Force Court and the Court of Military Ap-

peals relied heavily on United States v. Gardner, 22 M.J.

28 (C.M.A. 1986), a case which is distinguishable from the

instant case in many significant respects. In Gardner, the

Court of Military Appeals set out standards to minimize

the possibility of nonevidentiary uses of immunized

testimony by the prosecution, nevertheless the Air Force

Court used Gardner to justify the multitude of noneviden-

tiary uses of the appellant’s immunized testimony by the

prosecution.

The Air Force Court of Military Review decided the in-

stant case in a way which appears to conflict with the

Army Court of Military Review’s decision in United States

v. Eastman, 2 M.J. 417 (A.C.M.R. 1975). In fact, the Air

Force Court quite clearly questioned the validity of

Eastman. United States v. England, 30 M.J. 1030, 1032

(A.F.C.M.R. 1990).

In United States v. Eastman, 2 M.J. 417, 419

(A.C.M.R. 1975), one of the first military cases to apply

AKastigar, the Army Court of Military Review stated that

“Federal case law and law review commentators generally

agree that certain minimum guidelines must be followed”

in trials occurring after the obtaining of immunized

testimony from the accused. The, court set out such

guidelines for use in military courts-martial as follows:

a. No use, direct or derivative, can be made of the

immune testimony... . Prosecutorial use of

testimony could include assistance in focusing the in-

vestigation, deciding to initiate prosecution, refusing

to plea bargain; interpreting evidence, planning cross-

examination, and planning trial strategy.

b. The Government should be confined to evidence

which was certified by the court before the testimony

was compelled... .

c. To assure non-use, no One involved in the pro-

secution of an accused may read his immune

testimony. As we have already indicated, we believe

this would include all personnel involved in pretrial

activities such as the Article 32 investigating officer,

all personnel involved in pretrial advice to the conven-

ing authority and the convening authority

himself... .

Id., at 419 (emphasis added, citations omitted). In the case

at bar there is conspicuous and prejudicial straying from

these guidelines.

As to the first guideline, the prosecution failed to bear

its “heavy burden of affirmatively proving that no

evidence was derived, directly or indirectly trom the

testimony compelled from the appellant under the grant of

immunity.” /d., at 418 citing United States v. Rivera, 23

U.S.C.M.A. 430, 50 C.M.R. 389, 1 M.J. 107 (1975). In

fact, Captain Tomanelli admitted that after he interviewed

the appellant under the grant of immunity, he attempted

10 set up an interview with Airman Parker, to determine

his usefulness as a witness in appellant’s case. R. 22. Air-

nian Parker was another member of the appellant’s unit

who was alleged to have been involved in illicit drug use.

Captain Tomanelli also admitted that just a week before

trial (well after the immunized interview) he discussed with

Captain Nesser, one of the trial counsel in appellant’s case,

how to try to admit statements made by the appellant,

under Mil. R. Evid. 404(b) (identical to Fed. R. Evid.

404(b)). R. 23. He also admits discussing the production

of witnesses, trial tactics and trial strategy. R. 22. All of

these actions directly violate the first guideline set out in

Eastman, supra.

Furthermore, it is uncontested that the appellant was

not charged until some 21 days after he provided his im-

munized testimony. Nevertheless, Captain Tomanelli, the

very individual who questioned the appellant under the

grant of immunity then served as the Government

representative at the hearing under Article 32, UCMJ, 10

U.S.C. § 832 (1988). This is a direct violation of Eastman.

Captain Tomanelli later claimed that all of these in-

teractions with the appellant’s case did not make improper

derivative use of appellant’s immunized testimony. Such

disclaimers are insufficient.

What is required to permit a prosecution to go for-

ward alter a showing the accused has been granted

testimonial immunity is something more than mere

representations on the part of the Government, no

matter that they were uttered in good faith and with

the utmost integrity of belief.

United States v. Boyd, 27 M.J. 82, 85 (C.M.A. 1988)

citing United States v. Rivera, supra, at 110.

As to the second guideline set out in Eastman, supra,

there was no attempt whaisoever to set aside evidence

prior to receipt of the compelled testimony. The court ac-

knowledged that court certification of such evidence

would be precluded under the peculiarities of military

courts, but indicated something comparable should be ac-

complished. Several courts have suggested a means:

We reiterate the suggestion that the Government

should consider taking the precaution of “catalogu-

ing” or “freezing” the evidence it has compiled against

an individual prior to taking immunized testimony to

9

assist in meeting the heavy burden of proving a

legitimate, independent source of its evidence at any

subsequent court-martial.

United States v. Boyd, supra at 85, citing United States v.

Gardner, 22 M.J. 28, 32 (C.M.A. 1986). In the instant

case, despite a claim by Captain Tomanelli that a decision

to court-martial the appellant had been made on or about

ne 30, 1989, R. 17, no cataloguing was accomplished

before the grant of immunity, almost three months later,

nor before the immunized interview, a week after the

grant. In fact no cataloguing, freezing, or compartmen-

talizing of any type has ever been done in this case, yet the

appellant is to believe, on the word of his prosecutors, that

no derivative use was ever made of his testimony.

Finally, as to the last guideline in Eastman, contrary to

any assurance Of non-use by persons involved in the pro-

secution of the appellant, we have in this case the active

participation of Captain Tomanelli as both one who inter-

viewed the appellant under a grant of immunity and the

government representative at the Article 32 hearing. Cap-

tain Tomanelli also provided tactical and strategic advice

to the counsel who ultimately tried the case right up to the

lume of trial—long after he had been exposed to the im-

munized testimony.

Captain Sakellis, the other judge advocate involved in

interviewing the appellant under the grant of immunity,

also intimates that he had some discussion with the Staff

Judge Advocate (SJA) concerning the interview, though

he is hazy on the details. As to conclusory assurances by

Capiain Sakellis that he believes no substantive informa-

tion from the immunized testimony was revealed, the ap-

pellant is once again left impermissibly to rely on the word

of those prosecuting him. The Government failed to prove

that Captian Tomanelli did not also reveal details of the

10

interview to the SJA. It is also unclear from the record

what if anything the Convening Authority knew of the in-

terview prior to referring the appellant’s case for trial. The

taint of the prosecutorial chain was addressed pointedly in

United States v. Gardner, 18 M.J. 612, 618 0.10

(A.F.C.M.R. 1984):

It is axiomatice that the ideal situation is to dispose of

an accused’s trial) prior to giving immunized

testimony. Should the situation dictate an accused

giving immunized testimony prior to his own trial, the

staff judge advocate concerned will be well advised to

exercise precise compartmentalization among any of

his assigned judge advocates involved with the case.

Even then, the better practice will be to transfer the

accused’s case to another convening authority.

The appellant’s case was not transferred to another con-

vening authority despite the fact that the same convening

authority who granted the appellant testimonial immunity

on September 18, 1989, subsequently referred the ap-

pellant’s case to a general court-martial on November 9,

1989. The Government failed to show that the Convening

Authority was not made privy to the immunized testimony

of the appellant.

Government counsel alleged in their response to the Mo-

tion to Dismiss that their evidence had an independent,

legitimate source since they intended only to elicit: the

testimony of Airman Brister and Special Agent Collier.

App. Ex. II, at 2. But the signed sworn statement provid-

ed on June 30, 1989 by Airman Brister was quite vague

and ambiguous, even by Captain Tomanelli’s own admis-

sion. R. 24-25. It included no specific dates. The few items

it was specific about directly contradicted the admissions

made by the appellant in his June 30, 1989 statement.

Thus, the immunized statements made by the appellant

Which linked himself with Airman Brister, Airman Maish,

and others implicated by Airman Brister could potentially

have been used to overcome the deficiencies of Airman

Brister’s original statement.

Certainly it would be reasonable to assume that the

Government would prepare its witnesses prior to their

testifying in court. Since Captain Tomanelli continued to

advise the trial counsel on tactical, strategic and witness

issues, R. 22-23, even after he conducted the immunized

Interview, It 1s impossible to ascertain to what extent the

witnesses may have been tainted after having been per

pared by counsel who were exposed to the immunized

testimony. As such, the Government failed to meet its

heavy burden of affirmatively proving that derivative use

of the immunized testimony would not creep in.

The same can be said with regard to Special Agent

Collier. While denying that he was made privy to the

substance of the immunized testimony, he intimates that

he did discuss the appellant’s case with Captain Tomanelli

after the date of the immunized interview. R. 33-34. It was

not affirmatively proven by the Government that such

discussions did not amount to a tainting of Special Agent

Coilier. Captain Tomanelli’s knowledge may have

prompted him, even subconsciously, to focus on certain

issues, similarities Of testimony, contradictions of

lestimony, acquaintances of the appellant, dates, places,

or Other new facts learned in the immunized statement, R.

23-25, in his discussions with Special Agent Collier which

could taint Special Agent Collier’s testimony. Special

Agent Collier would easily have been able to assimilate

seemingly insignificant details since he had conducted the

interviews of both Airman Brister and the appellant betore

the immunity grant and so knew the extent to which their

separate accounts diverged and where bridges had to be

built to use One against the other.

12

Thus, even as to these two witnesses the Government

did not meet its heavy burden of showing their testimony

was independent since there was apparently interaction be-

tween Captain Tomanelli and Special Agent Collier after

the immunized testimony. Additionally, Captain

Tomanelli’s decision to continue to advise trial counsel on

matters of witnesses, tactics and strategy effectively

tainted both trial counsel and any witnesses they subse-

quently interviewed or prepared for testimony.

It must be emphasized that the burden of proof was not

on the appellant to establish actual tainting, nor was it

even sufficient for the Government to negate any taint.

Kastigar v. United States, 406 U.S. 441, 460 (1972).

Rather, the Government had to meet the heavy burden of

proving the independence of each source and every item of

evidence. United States v. Hampton, 775 F.2d 1479, 1489

(11th Cir. 1985). Because of Captain Tomanelli’s extensive

role, first as the prosecutor and then as advisor to the

prosecution team, right up to the day of trial, the Govern-

ment failed to meet this heavy burden.

13

CONCLUSION

The petitioner’s case is a worthy case for this Court’s

review. Specifically, this case affords an opportunity for

this Court to settle the question, left open by Murphy and

Kastigar, both supra, as to whether the Government can

compel an individual to indirectly incriminate himself, by

offering him immunity and then making nonevidentiary

uses of the information gained therein.

Respectfully submitted,

RICHARD W. ALDRICH

Capiain, Atr Force

Legal Services Agency

United States Air Force

HQ USAF/JAJD

Bldg 5683

Washington, DC 20332-6128

202/767-1562

Counsel of Record

Jtti key R. OWENS

Colonel, Air Force

Legal Services Agency

United States Air Force

December 199] Counsel for Petitioner

APPENDICES

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 28276

UNITED STATES

v.

AIRMAN STEPHEN K. ENGLAND, FR 022-66-3555

UNITED STATES AIR FORCE

25 MAY 1990

Sentence adjudged 21 November 1989 by GCM con-

vened at Homestead Air Force Base, Florida. Military

Judge: Jay L. Davis (sitting alone).

Approved sentence: Bad conduct discharge, confine-

ment for eight (8) months, forfeiture of four hundred

sixty dollars ($460.00) pay per month for eight (8)

months and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel

Richard F. O’Hair and Captain Richard W. Aldrich.

Appellate Counsel for the United States: Colonel

Robert E. Giovagnoni; Major Paul H. Blackwell, Jr.

and Captain James C. Sinwell.

Before BLlomMerRS, KASTIL: and Murbock, Appellate

Military Judges

(la)

2a

DECISION

KASTL, Senior Judge:

May a military member be tried by court-martial despite

the fact that the Government possesses his immunized

testimony? Yes—provided the Government shoulders its

heavy burden and proves that its evidence at trial arose

completely independent of that immunized testimony. See

Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32

L.Ed.2d 212 (1972). ee

Applying Kastigar and its lineage, we conclude that the

military judge did not err in refusing to grant the ap-

pellant’s motion to dismiss because of such alleged taint.

Factual Setting

Airman England faced a bench trial general court-

martial for using cocaine on divers Occasions, in violation

of Article 112a, UCMJ. His conditional pleas of guilty

preserve before us his contention that the Government

used tainted evidence against him. He was found guilty

and sentenced to a bad conduct discharge, confinement

for eight months, forfeiture of $460.00 pay per month for

eight months, and reduction to airman basic.

In early June 1989, an airman in England’s unit died

after a drug overdose. This triggered subsequent urinalysis

tests. Airman Brister “popped positive” for cocaine use.

On 30 June, Brister confessed his use to the Office of

Special Investigations (OSI). He also implicated others, in-

cluding the appellant and an Airman Maish. Hours after

the Brister interview, the appellant conceded to the OSI

that he had twice used cocaine.

In September 1989, the appellant received testimonial

immunity as to Maish’s drug use. Captains T and S inter-

viewed him in the Maish investigation under that grant of

3a

immunity. In October 1989, the same Captain T served as

Government representative at the appellant’s Article 32 in-

vestigation.

Soon thereafter, personnel at the Office of the Staff

Judge Advocate, Ninth Air Force (legal advisor to the

general court-martial convening authority), removed Cap-

tain T as trial counsel in the appellant’s court-martial. He

continued to advise the new trial team, however.

Improper Use of Immunized Testimony?

Betore us, the appellant argues that:

THE MILITARY JUDGE ERRED TO THE

SUBSTANTIAL PREJUDICE OF THE APPEL-

LANT BY FAILING TO GRANT THE MOTION

TO DISMISS BASED ON THE GOVERNMENT’S

IMPROPER USE OF IMMUNIZED TESTIMONY.

The military judge made extensive findings. He ruled

that the Government had sustained its heavy burden and

had affirmatively demonstrated that all of its evidence at

trial originated independent of the compelled testimony.

The case against the appellant was complete on 30 June

198. It consisted of two items: (1) appellant’s confession

to the OSI; and (2) Brister’s statement. Nothing learned

during the course of England’s subsequent immunized in-

terview about Maish was useful in convicting either Maish

or the appellant.

We agree with the military judge’s findings. We are

satisfied that the Government met its affirmative burden

to show that its evidence arose from a source completely

independent of England’s compelled testimony. See

United States v. Gardner, 22 M.J. 28, 30-31 (C.M.A.

1986), citing Aaustigar v. United States, 406 U.S. 441, 446,

4a

92 S.Ct. 1653, 1657, 272 L.Ed.2d 212 (1972); see also

United States v. Garrett, 24M.J. 413, 416(C.M.A. 1987);

Healy, Problems in Immunity for Military Witnesses,

Army Lawyer (Sept. 1986) 21, 27-29.

We are confident the appellant’s immunized testimony

was never used to improve or perfect the Government’s

case. On 30 June the following two evidentiary matters

were comfortably in Government hands:

1. Brister implicated the appellant; and

2. The appellant confessed.

Suppose that on that date—and until his trial—the ap-

pellant maintained silence, despite Government attempts

to loosen his tongue with a grant of immunity. One cannot

evade the logic of the situation —all the facts necessary to

convict the appellant were in place on 30 June. There was

no Government corporate thumb impermissibly tilting the

scales of justice. To the contrary, the Government had

ample evidence, independent of any compelled testimony,

to convict the appellant.

The appellant relies on United States v. Eastman, 2

M.J. 417 (A.C.M.R. 1975), as a key to overturning his

conviction. He argues that Eastman mandated certain

rules for prosecutors. In contrast to that mandate, he in-

sists, the Government blundered badly. It neither quaran-

lined the compelled testimony from England’s court

martial nor sealed that testimony away from its pro-

secutorial arm.

We are not entirely comtortable with Eastman, an early

effort to apply Kastigar in a military setting. Its strictures

for erecting a “Chinese wall” for Army staff judge ad-

vocates, prosecutors, Article 52 officers, and other legal

personnel, while perhaps advisable, may go beyond what

it absolutely necessary. Eastman has only been cited in one

Sa

other opinion, to the best of our knowledge. That was a

passing reference in United States v. Tucker, 20 M.J. 601

(N.M.C.M_R. 1985). Our Navy-Marine Corps brethren

there compared Eastman, without comment, to this

Court’s decision in United States v. Gardner, 18 M.J. 612

(A.F.C.M.R. 1984), aff'd. at 22 M.J. 28 (C.M.A. 1986).

Whatever the validity of Eastman, we consider the

guidance of the Court of Military Appeals in Gardner

binding. There, the Court found no fatal blemish by par-

ticipation of a member of the prosecution in obtaining the

appellant’s immunized testimony. We also believe Gardner

echoes recent Federal civilian court analysis. See, e.z.,

Uniied States v. Serrano, 870 F.2d 15, 17 (1st Cir. 1989);

United States v. Gallo, 863 F.2d 185, 190 (2d Cir. 1988);

United States v. Friedrick, 842 F.2d 382, 394-395 (D.C.

Cir. 1988).

A Caveat for Practitioners

hrom our vantage point, we can Occasionally serve the

field by cautioning those responsible for military justice as

to some of the bogeymen lurking.* This is such a case.

We make the following observations. First, this appeal

could have been minimized if the immunized data had

been screened from the trial team. Second, ideally, all the

data should have been catalogued or sealed so as to pro-

vide a clear, sanitized paper trail. United States v. Boyd,

27 M.J. 82, 85 (C.M.A. 1988) and cases cited; DA Pam

27-22 Evidence, para. 24-2¢(4)(d) (15 July 1987). Third,

Captain T should have recused himself from all cou.tact

with the new prosecutors so as to preclude any supposition

* One successtul statt judge advocate keeps a folder entitled “Let's

Not Do THAT Again,” which ts required reading tor all newcomers

We consider it a Wise practice Lo minimize errors.

64

that the trial may have been flawed by the use of immuniz-

ed testimony.

The findings of guilty and the sentence are correct in law

and fact and, on the basis of the entire record, are

AFFIRMED.

Senior Judge MURDOCK concurs.

Senior Judge BLOMMERS absent.

[SEAL]

OFFICIAL:

/s/ Mary V. Fillman

Marky V. FiLiMAN

Captain, USAF

Chief Commissioner

Ta

U.S. COURT OF MILITARY APPEALS

No. 64,962

ACM 28276

UNITED STATES, APPELLEE

STLPHEN K. ENGLAND, AIRMAN, U.S. Aik FORCE,

APPELLANI

Argued Feb. 23, 199]

Decided Sept. 3, 1991

For the Appellant: Captain Richard W. Aldrich

(argued); Lieutenant Colonel Jeffrey R. Owens (on brict);

Colonel Richard F. O’Hair.

For Appellee: Captain James C. Sinwell (argued);

Licutenant Colonel Brenda J. Hollis (on briet); Major

Paul H. Blackwell, Jr.

Opinion of the Court

Cox, Judge:

Appellant was convicted by general court-martial

(military judge alone), following conditional guilty pleas,

of one specification of wrongtul use of cocaine on divers

occasions, In violation of Article 1124, Uniform Code of

8a

Military Justice, 1O U.S.C. § 912a. He was sentenced to a’

bad-conduct discharge, 8 months’ confinement, forfeiture

of $460.00 pay per month for 8 months, and reduction to

airman basic (E-1). The convening authority approved the

sentence, and the Court of Military Review affirmed the

findings and sentence. 30 MJ 1030 (1990).

We granted review to consider:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF AP-

PELLANT BY FAILING TO GRANT THE 'MO-

TION TO DISMISS BASED ON THE GOVERN-

MENT’S IMPROPER USE OF IMMUNIZED

TESTIMONY.

Following the drug-overdose death of an airman, five

members living in the same dormitory with the deceased

were tested for substance abuse. One member, Airman

Brister, tested positive for cocaine use. Brister confessed

10 investigators from the Office of Special Investigations

(OSI) and implicated appellant, Airman Maish, and one

other airman. Brister said appellant used cocaine on four

separate Occasions. Appellant was later interviewed by

OSI investigators and admitted to cocaine use.

Appellant was interviewed several months later, pur-

suant to a grant of testimonial immunity, by Captain

Steven N. Tomanelli, a judge advocate assigned to pros-

ecute Airman Maish. It is this interview which gives rise to

the issue on appeal. The purpose of the interview was to

determine if appellant could provide corroborative

evidence of drug use by Airman Maish. Appellant denied

any knowledge.

The next month charges were preferred against ap-

peilant. Captain Tomanelli represented the Government at

9a

the pretrial investigation convened to consider whether ap-

pellant should be tried for the drug offenses. Art. 32,

UCMJ, 10 U.S.C. § 832. Therefore, at the suggestion of

higher headquarters. Captain Tomanelli removed himself

as trial counsel and did not participate further in the pros-

ecution.

At trial, appellant moved to dismiss the case against him

“on the grounds that ... [his] trial ha[d] been fatally

tainied by the participation of government counsel after

the accused’s immunized statements were taken.” Con-

siderable testimony was heard on the motion before the

military judge denied it.

Appellant also moved to suppress his confession due to

lack of corroboration. Mil.R.Evid. 304(g), Manual for

Courts-Martial, United States, 1984. The military judge

granted the motion in part, admitting only those portions

of the confession that involved appellant, Airman Brister,

and two other airman. Following the military judge’s

rulings, appellant entered pleas of guilty conditioned upon

preserving his right to appeal these decisions. See RCM

901(a)(2), Manual, supra.

On review, the Court of Military Review asked the

following rhetorical question:

May a military member be tried by court-martial

despite the fact that the Government possesses his im-

munized testimony? Yes—provided the Government

Shoulders its heavy burden and proves that its

evidence at trial arose completely independent of that

unmunized testiinony. See Kastigar v. United States,

406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

30 MJ at 1031.

The Court of Military Review then examined the record

and concluded:

We are confident the appellant’s immunized

testimony was never used to improve or perfect the

10a

Government’s case. On 30 June the following two

evidentiary matters were comfortably in Government

hands:

1. Brister implicated the appellant; and

2. The appellant confessed.

Suppose that on that date—and until his trial!—the

appellant maintained silence despite Government at-

tempts to loosen his tongue with a grant of immunity.

One cannot evade the logic of the situation— all the

facts necessary to convict the appellant were in place

on 30 June. There was no Government corporate

thumb impermissibly tilting the scales of justice. To

the contrary, the Government had sample evidence,

independent of any compelled testimony, to convict

the appellant.

Id. at 1032.

In United States v. Gardner, 22 MJ 28, 31 (CMA 1986),

we suggested severa! factors to be considered in deciding

Whether the Government’s evidence against appellant was

obtained from a source wholly independent of appellant’s

immunized testimony, as follows:

1. Did the accused’s immunized statement reveal

anything “which was not already known to the Govern-

ment by virtue of [the accused’s] own pretrial statement”?

2. Was the investigatior against the accused com-

pleted prior to the immunized statement?

3. Had “the decision to prosecute” accused been made

prior to the immunized statement? and,

4. Did the trial counsel who had been exposed to the

immunized testimony participate in the prosecution?

Appellant argues correctly that, once the Government

elects tO immunize a member in order to Obtain evidence,

lla

immunity extends not only to use of the information ob-

tained but also to derivative use. United States v. Boyd, 27

MJ 82 (CMA 1988); see also United States v. North, 910

F.2d 843, 860-63 (D.C.Cir. 1990), cert denied, —U.S.—,

111 S.Ct. 2235, 114 L.Ed.2d 477 (1991). In order to pro-

tect an accused against derivative use of his coerced

testimony, appellant urges us to adopt rigid guidelines

which the Government must follow prior to prosecuting

an accused who has been forced, by immunity, to give

evidence to the Government. See United States vy.

Eastman, 2 MJ 417 (ACMR 1975). For example, citing

Eastman, Boyd, and Gardner, appellant argues that the

Government should be required to “compartmentalize” in

advance of the immunity all the evidence it has against an

accused, file it with a court, and then rely solely on that

evidence to prosecute the accused. However, although the

Government can most certainly make its case easier to

prove by “cataloguing” or “freezing” its evidence, such is

not required. United States v. Gardner, 22 MJ at 32.

What is required is that the Government prove by a

preponderance of the evidence that it did not use the im-

munized testimony against an accused, either directly or

indirectly. Kastigar v. United States, supra.

The most difficult question to resolve is the participa-

tion by Captain Tomanelli in both the immunized inter-

view and the subsequent Article 32 investigation of ap-

pellant. It also is clear from his testimony at trial that the

decision to prosecute appellant had not yet been made at

the time of the immunized interview. However, here the

immunized interview was focused only on the prosecution

of another member, Airman Maish. It is significant that

the military judge made a specific finding of fact sup-

ported by the evidence of record that nothing was learned

in the interview which might incriminate appellant or

otherwise be used to his disadvantage. Indeed, it appears

12a

that the interview was a “non-event.” Not only was

nothing learned about appellant’s case; nothing was learn-

ed about Maish’s case either. Nothing happened as a con-

sequence of the interview. Likewise, there is nothing in the

record which suggests that the decision to prosecute ap-

pellant was made as a result of the immunized interview.

Most certainly the better practice would have been for

Captain Tomanelli to have divorced himself completely

from appellant’s case, even to the extent of forwarding the

case to a different convening authority (or at least to the

Circuit Trial Counsel in Air Force practice). We are

satisfied, however, that appellant was not prejudiced by

either the interview or Captain Tomanelli’s participation

in the Article 32 investigation. Art 59(a), UCMJ, 10

U.S.C. § 859(a); United States v. Gardner, supra.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Senior Judge EVERETI

concur.

GOVERNMENT PRINTING OFFICE 1991 590U/