# Petition for Writ of Certiorari — England v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1092

## Text

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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/

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2085%3A1. Public record. Not legal advice.