Petition for Writ of Certiorari — Lucas v. United States

Supreme Court, U.S. |

87-823” FILED

NQ¥ 20 96!

In the Supreme Court of the Uni

OCTOBER TERM, 1987

Ricky L. LUCAS, PETITIONER,

v.

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel, Office of The

Judge Advocate General

United States Air Force

Hq USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

FRANK J. SPINNER

Major, Office of The Judge

Advocate General

United States Air Force

QUESTION PRESENTED

Is a prosecutor’s failure to disclose prior involvement

with an accused’s immunized testimony and withdraw

from the case plain error?

(i)

TABLE OF CONTENTS

(iii)

Page

Whe Ae a raretal gga us Wik kG oe. 405 o od ok l

ee a a Cea hee awe |

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

I a ee 2

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

en a dwadeaev bese 6

TABLE OF AUTHORITIES

Cases:

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

sa a ge a 3, 4, 5

Murphy v. Waterfront Commission, 378 U.S. 52

re ee eae age a ae. 3,4

United States v. Brimberry, 744 F.2d. 580 (7th

ee a te web ou és 4

United States v. Keilly, 455 F.2d 1285 (2d Cir

1971), cert. denied, 406 U.S. 962 (1972}..... 5

United States v. Lucas, 19 M.J. 773

(A.F.C.M.R. 1984), aff'd, 25 M.J. 9 (C.M.A.

nr ys 440 0808 1, 3

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

eg ee hy a df bbe w oe 5

United States v. McDonnel, 550 F.2d 1010 (Sth

Cir. 1977), cert. denied, 434 U.S. 835 (1977) . 4

United State v. Pantone, 634 F.2d 716 (3d Cir.

AEE A 4

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

a ERIE Pel eg 4

United States v. Thevis, 665 F.2d 616 (Sth Cir.

1982), cert. denied, 459 U.S. 825 (1982) ..... 3

United States v. Turkish, 623 F.2d 769 (2d Cir.

1980), cert. denied, 449 U.S. 1077 (1981) .... 4

(iv)

Constitutions and Statutes:

ok Weg eS er year 2

10 U.S.C. § 867(h) (Supp III 1985) ........... ]

28 U.S.C. § 1259 (3) (Supp III 1985) ......... 1

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

Ricky L. LUCAS, PETITIONER,

V.

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Ricky L. Lucas respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on

September 21, 1987.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review is reported at 19 M.J. 773 (A.F.C.M.R.

1984) and is reproduced in the appendix to this petition

(“Pet. App.”) at page 6a. The decision of the United States

Court of Military Appeals is reported at 25 M.Jj. 9

(C.M.A. 1987), Pet. App. la.

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h) (Supp III 1985) and 28 U.S.C. § 1259(3)

(Supp III 1985). The judgment of the Court of Military

Appeals was entered on September 21, 1987.

(1)

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment provides:

No person shall be... compelled in any criminal

case to be a witness against himself... .

STATEMENT OF THE CASE

Petitioner was convicted by an Air Force general court-

martial, pursuant to his pleas, of using, possessing and

distributing marijuana and using and possessing cocaine.

Contrary to his plea, he was convicted of distributing co-

caine. His sentence included confinement for three years,

forfeiture of $397.00 pay per month for three years, reduc-

tion to the lowest enlisted grade and a dishonorable dis-

charge. The court-martial convening authority limited the

period of confinement and forfeiture of pay to 32 months.

Captain David Stephenson, the prosecutor at peti-

tioner’s trial, also prosecuted a related case in which peti-

tioner testified under a grant of immunity. The accused in

the related case, Sergeant Aea, in turn testified at peti-

tioner’s trial. Sergeant Aea’s trial occurred in November,

1983, and petitioner’s trial occurred in April, 1984.

Captain Stephenson prepared petitioner’s immunized

testimony against Aea and conducted the direct examina-

tion of petitioner in Aea’s trial. Part of that testimony in-

cluded petitioner’s recitation of events surrounding a trip

he took with Aea to Ft. Lauderdale, Florida, which served

as the focus for the contested charge. At the very opening

of petitioner’s trial, the military judge inquired whether

either counsel “had functioned in any disqualifying or in-

consistent capacity in this case.” Captain Stephenson

replied, “No.” (R. 4). At no point in the record of trial is it

disclosed that he advised the military judge or trial defense

counsel of his prior involvement with petitioner’s im-

munized testimony.

3

Captain Stephenson used information from petitioner’s

prior immunized testimony to bolster Aea’s testimony

against petitioner and to impeach petitioner and another

defense witness. (R. 196, 152-156, 239-258, 302-304). No

specific objection or motion was made by the trial defense

counsel regarding this improper use. Although the military

judge was aware of the use of petitioner’s prior testimony,

there is no indication he was aware that it was given under

a grant of immunity. Nor did he inquire specifically on

that point.

The lower appellate courts held that petitioner failed to

“demonstrate” that he had previously testified under a

grant of immunity, therefore negating any requirement for

a Kastigar hearing. Nor did the use of the same prosecutor

in related cases under the facts presented herein constitute

plain error. United States v. Lucas, 19 M.J. 773

(A.F.C.M.R. i984), aff'd, 25 M.J. 9 (C.M.A. 1987).

REASONS FOR GRANTING THE WRIT

This case raises an important question regarding a pros-

ecutor’s responsibility in handling immunized testimony.

Where an accused has been compelled to testify under im-

munity regarding criminal activity and is later prosecuted

for related misconduct, there must be adequate safeguards

to preserve his right against self-incrimination. This has

been determined to require that once an accused demon-

strates that he gave prior testimony under immunity on

matters related to his own prosecution, the government

bears the heavy burden of affirmatively showing that pros-

ecution evidence is untainted and independent of the im-

munized testimony. Kastigar v. United States, 406 U.S.

441 (1972); Murphy v. Waterfront Commission, 378 U.S.

52 (1964).

Prosecutions must be carefully planned to insure that an

accused and the government remain in substantially the

same position had an accused not been compelled to

testify prior to his own trial. See United States v. Thevis,

4

665 F.2d 616, n. 26 (Sth Cir. 1982) (government must take

extra-Ordinary steps such as arranging for a new team of

prosecutors), cert. denied, 459 U.S. 825 (1982); United

States v. Turkish, 623 F. 2d 769 (2d Cir. 1980) (heavy

burden may be met by “cataloging” or “freezing” the

evidence known prior to a grant of immunity), cert.

denied, 449 U.S. 1077 (1981).

There is no indication these or similar safeguards were

employed in petitioner’s case. On the contrary, it appears

that no safeguards were employed to see that petitioner’s

immunized testimony was isolated from the evidence pre-

sented against him. In any event, the government should

have been prepared to carry the burden required by

Kastigar and Murphy v. Waterfront Commission, supra.

Two cases help illustrate the extent of the error. In one

case, where the trial counsel (an Assistant United States

Attorney) had access to the defendant’s immunized grand

jury testimony, the court remanded for an evidentiary

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

1983) In the other case, United States v. Pantone, 634 F.2d

716, 719 (3d Cir. 1980), appellant argued for “a per se rule,

which would require the withdrawal of a prosecutor who

may be privy to compelled testimony.” The court ruled,

however, under the unique facts of the case that it was

possible to show the evidence was not tainted. Taken

together, these cases highlight the egregious nature of peti-

tioner’s case, where the prosecuting attorney had more

than access to immunized testimony. He actually called

and prepared the petitioner as a government witness when

the compelled testimony was given.

For reasons which are not stated in the record, trial

defense counsel did not object or otherwise raise the issue.

This would arguably constitute waiver. There are federal

decisions which have so found and applied the “plain er-

ror” analysis in resolving the issue. See United States vy.

Brimberry, 744 F.2d 580 (7th Cir. 1984); United States v.

McDonnel, 550 F.2d 1010 (Sth Cir. 1977), cert. denied,

434 U.S. 835 (1977); United States v. Keilly, 445 F.2d 1285

(2d Cir. 1971), cert. denied, 406 U.S. 962 (1972).

The gravity of the error in petitioner’s case is such that if

his conviction is allowed to stand, a clearer miscarriage of

justice is hard to imagine. Assuming an objection had

been made at trial and a Kastigar hearing held, it would

have been next to impossible, if not impossible, for the

government to carry the burden of proof. One Circuit

Court of Appeals held that a prosecutor’s access to com-

pelled testimony created an insurmountable burden to

show an absence of taint. United States v. McDaniel, 482

F.2d 305 (8th Cir. 1973). This holding would appear to

justify a finding of plain error, if not the establishment of

a per se rule. Finally, it is hard to believe that the govern-

ment would be overly burdened with a per se rule, while

much good would flow from a practice requiring different

prosecutors in related cases that involve immunized

testimony.

6

CONCLUSION

Petitioner submits that the prosecutor in his case had an

affirmative duty to disclose prior involvement with peti-

tioner’s immunized testimony and withdraw from the case,

which was not done. Therefore, this petition for a writ of

certiorari should be granted.

LEO L. SERGI

Colonel, Office of The

Judge Advocate General

United States Air Force

HG USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

FRANK J. SPINNER

Major, OTJAG

United States Air Force

>»

November 1987

APPENDICES

UNITED STATES COURT OF MILITARY APPEALS

No. 51677

ACM 24465

UNITED STATES, APPELLEE

¥.

Ricky L. LUCAS, STAFF SERGEANT

U.S. AiR FORCE, APPELLANT

September 21, 1987

COUNSEL

For Appellant: Colonel Leo L. Sergi and Major Conrad

C. Baldwin, Jr. (on brief).

For Appellee: Colonel Kenneth R. Rengert and Lieutenant

Colonel Donal F. Hartman, Jr. (on brief).

OPINION OF THE COURT

EVERETT, Chief Judge:

At his general court-martial by a military judge sitting

alone, appellant was convicted, pursuant to his pleas, of

use, possession, and distribution of marijuana, and use

and possession of cocaine. Also, contrary to his plea,

Lucas was convicted of distributing cocaine. These of-

fenses were violations of Article 134, Uniform Code of

Military Justice, 10 U.S.C. § 934. Thereupon, the judge

sentenced him to a dishonorable discharge, confinement

for 3 years, forefeiture of $397.00 pay per month for 3

years, and reduction to the lowest enlisted grade. The con-

vening authority approved these results, except for con-

(1a)

2a

finement and forfeitures exceeding 32 months. The Court

of Military Review affirmed. 19 M.J. 773 (1984).

We granted review of these issues:

WHETHER THE AIR FORCE COURT OF MILITARY

REVIEW ERRED BY HOLDING THAT APPELLANT HAD

NOT ADEQUATELY “DEMONSTRATED” THAT HE HAD

BEEN DENIED A FAIR TRIAL WHERE THE SAME

DETAILED TRIAL COUNSEL HAD EXAMINED HIM

PRIOR TO TRIAL UNDER A GRANT OF TESTIMONIAL

IMMUNITY AND THEN CROSS-EXAMINED HIM AT HIS

OWN TRIAL ON THE SAME MATTERS.

WHETHER THE AIR FORCE COURT OF MILITARY

REVIEW ERRED BY HOLDING™ APPELLANT HAD

“WAIVED” THE ISSUE OF TRIAL COUNSEL’S IMPROPER

USE OF APPELLANT’S PRIOR IMMUNIZED TESTIMONY

UNDER MIL. R. EVID. 103(a) AND THAT SUCH AN ISSUE

WAS NOT PLAIN ERROR UNDER MIL.R.EVID. 103(d).

WHETHER THE MILITARY JUDGE ERRED BY STRIK-

ING THE PARTIAL TESTIMONY OF A DEFENSE WIT-

NESS (VEST) WITHOUT FIRST INVOKING OTHER

ALTERNATIVES.

ISSUES I & Il

Lucas had testified under a grant of testimonial im-

munity at the prior court-martial of Sergeant Aea. Cap-

tain David Stephenson, the trial counsel in that case, was

also the prosecutor at appellant’s trial. However, at no

time during the trial did either of appellant’s military

defense counsel voice any objection to Stephenson’s par-

ticipation as trial counsel.

An accused who has testified under a grant of immunity

may require the Government to demonstrate that it has

3a

not used information or evidence derived from his im-

munized testimony. However, as cogently explained by the

Court of Military Review, the accused must assert his right

in order to place this burden on the Government. Only

then must the Government show “that their evidence is not

tainted by establishing that they had an independent,

legitimate source for the disputed evidence.” United States

v. Gardner, 22 M.J. 28, 30 (C.M.A. 1986), quoting

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

in turn, quoted Murphy v. Waterfront Commission, 378

U.S. 52, 79 n. 18 (1964). Absent some defense complaint,

there is no reason to protract a trial by requiring the pros-

ecution to establish a negative—namely, that it has not

used information or evidence derived from the accused’s

immunized testimony.

If the military judge becomes aware that prohibited use

is being made of immunized testimony, then he has some

duty to intervene. Since both the good faith of the Govern-

ment and the constitutional rights of an accused are in-

volved, the judge should not invoke the doctrine of

waiver; and upon appellate review, Mil.R.Evid. 103(d),

Manual for Courts-Martial, United States, 1969 (Revised

edition), will apply. However, nothing in this record

would have suggested to the military judge—or now

demonstrates to us—that the prosecutor utilized

appellant’s immunized testimony in any way. There is no

indication that any of appellant’s guilty pleas were induced

in any way by prosecutorial use of information derived

from appellant’s immunized testimony; the questions

posed on cross-examination of Lucas when he took the

stand in his own defense do not appear to be derived from

his earlier testimony at Aea’s trial; and all the Govern-

ment’s evidence would apparently have been available

without any reliance on appellant’s immunized testimony.

Although appellant has not convinced us that he is en-

titled to relief because of Captain Stephenson’s partici-

4a

pation as trial counsel, some further comments are in

order. In the first place, while trial counsel was technically

correct when, at the outset of the trial, he answered the

military judge’s query with the assertion that he had not

“functioned in any disqualifying or inconsistent capacity

in this case,” he might better at that time have informed

the judge of his earlier role as prosecutor in a trial wherein

appellant had testified. under an immunity grant. Certain-

ly, the prosecutor should have been aware of the potential

issue created by his participation; and prudence would dic-

tate early resolution of such an issue -- rather than having

it later disrupt the trial or be a ground for appellate

review. -

Second, the failure of defense counsel to question the

prosecutor’s participation seems somewhat puzzling in

view of the ease with which the defense can place upon the

Government the heavy burden of disproving the use of im-

munized testimony given previously by the accused. Cer-

tainly, it is almost inconceivable that neither of the defense

lawyers was aware that Captain Stephenson had pros-

ecuted the earlier case in which appellant had testified.

Appellant government counsel have insisted that there

were logical reasons for the defense failure to contest Cap-

tain Stephenson’s participation as trial counsel. For exam-

ple, they contend that, prior to giving immunized testi-

mony, appellant, through his pretrial statements, had

already provided the Government ample information

about his activities; and so it would have been fruitless for

the defense to have raised any issue about misuse of ap-

pellant’s immunized testimony. Although we can imagine

many reasons for defense inaction, none of them is clearly

reflected in the record of trial. .

Appellate defense counsel have suggested that, absent

some explanation for the defense inaction, the specter of

ineffective assistance of counsel looms over this case.

Nonetheless, appellant has never specifically urged

through an appellate assignment of error that trial defense

Sa

counsel’s failure to challenge Captain Stephenson’s par-

ticipation constituted ineffective assistance of counsel

under the circumstances here. Keeping in mind that the

burden on an accused of demonstrating such ineffective-

ness is substantial, see United States v. Scott, 24M.J. 186,

187-89 (C.M.A. 1987), further speculation by this Court

now would serve no useful purpose.*

ISSUE Ill

Pursuant to Mil.R.Evid. 301(f)(2), the military judge

struck part of a defense witness’ testimony. The Court of

Military Review, for reasons we find convincing, upheld

the judge’s imposition of this sanction. 19 M.J. at 778-80.

Indeed, by striking only part of the testimony, the judge

demonstrated his intent to fulfill the purpose of the Rule,

as well as his determination to deprive the defense of no

more of the evidence it had offered than was necessary to

assure fairness to the Government. Appellate defense

counsel now suggest alternative remedies, which they insist

would have been less drastic and which might have been

used by the military judge. However, the time to have

urged use of those alternatives would have been in

resisting trial counsel’s motion to strike, but that was not

done. Thus, we fully agree with the court below that the

military judge acted properly.

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge COX concurs.

Judge SULLIVAN did not participate.

* Because of the likelihood that the defense failure at trial to assert a

claim of misuse of immunized testimony will lead to a later contention

that defense counsel was inadequate, a military judge who becomes

aware that an accused has previously testified under an immunity

grant will be wise to ask the defense whether it wishes to claim use of

immunized testimony and then to obtain the accused’s concurrence if

counsel declines to raise the matter.

6a

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24465

UNITED STATES

v.

STAFF SERGEANT Ricky L. Lucas, FR 422-780-8595

UNITED STATES AIR FORCE

21 DEC. 1984

Sentence adjudged 13 April 1984 by GCM convened at

Moody Air Froce Base, Georgia. Military Judge: Andrew

C. Pratt (sitting alone).

Approved sentence: Dishonorable discharge, confinement

at hard labor for thirty-two (32) months, forfeiture of

three hundred ninety-seven dollars ($397.00) per month

for thirty-two (32) months and reduction to airman basic.

Appellate Counsel for the Accused: Colonel Leo L. Sergi

and Major Conrad C. Baldwin, Jr. Appellate Counsel for

the United States: Colonel Kenneth R. Rengert, Major

Kevin L. Daugherty, and Major Robert E. Ferencik, Jr.

Before

FORAY, SNYDER and O’HAIR

Appellate Military Judges

7a

DECISION

SNYDER, Judge:

Pursuant to mixed pleas, the accused was convicted by a

military judge sitting as a general court-martial of posses-

sion, use, and distribution of marijuana and cocaine. The

only offense contested by the accused was one specifica-

tion of distributing cocaine. His sentence extends to a dis-

honorable discharge, confinement at hard labor for 32

months, and accessory penalties. He has submitted three

assignments of error for our consideration. Finding no er-

ror prejudicial to the substantial rights of the accused, and

finding no manifest miscarriage of justice, we affirm.

An investigation of illicit drug activities in and around

Moody Air Force Base, Georgia, identified the accused as

a suspect. He was interviewed by Special Agent Law of the

Air Force Office of Special Investigations (OSI) on 13 Oc-

tober 1983. During that interview, the accused admitted to

his illicit possession, use, and distribution of marijuana,

and his possession and use of cocaine. In addition to ex-

ecuting a written confession, the accused agreed to

cooperate with OSI in identifying others involved with

drug abuse activities. |

The accused apparently extended his cooperation with-

out benefit of any type of immunity until 17 November

-1983. It appears that he was involved as a witness in

United States v. Aea when he requested immunity prior to

providing further cooperation. The Commander, Ninth

Air Force, granted testimonial immunity on 17 November

1983.

Charges were preferred against the accused on 12

January 1984, investigated pursuant to Article 32 on 20

January 1984, and referred for trial by general court-

martial on 25 February 1984. His trial took place on 12

and 13 April 1984. The trial counsel, Captain S, was also

the trial counsel in United States v. Aea. As a result of

these events, one of the assignments of error is that the

8a

accused was denied a fair trial by virtue of trial counsel’s

involvement in Aea, and the “use” he made of the

accused’s immunized testimony in the accused’s trial.

After reviewing the assignments of error and the

Government’s reply, we granted oral argument and

specified the following issue:

WHETHER THE ISSUE OF IMPROPER USE OF IM-

MUNIZED TESTIMONY MAY BE WAIVED UNDER THE

PROVISIONS OF MIL. R. EVID. 103(a); OR, IS THE ISSUE

SUBJECT TO THE PROVISIONS OF MIL. R. EVID. 103(d).

The key salient fact of this case is that trial defense

counsel did not raise the issue at trial. Consequently, there

was no evidentiary hearing at which the Government could

have endeavored to demonstrate that its evidence was in-

dependent of and untainted by the accused’s immunized

testimony. See United States v. Whitehead, 5 M.J. 294

(C.M.A. 1978); United States v. Rivera, 1 M.J. 107

(C.M.A. 1975). Thus, the issue is being raised for the first

time on appeal.

Initially, we note that there was not anything at trial

which should have put the military judge on notice that an

evidentiary hearing was in order. Cf. United States vy.

Whitehead , supra, n. 9 and 11. The references to the ac-

cused having testified in United States v. Aea were vague

and cryptic, and there was no indication that he had

testified pursuant to immunity.

It was in Murphy v. Waterfront Comm’n, 378 U.S. 52,

84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), that the Supreme

Court promulgated the threshold test for raising the issue

of derivative use of immunized testimony. All an accused

need do is “demonstrate that he gave testimony under im-

munity on matters related to his own prosecution.” Mur-

phy v. Waterfront Comm’n, supra at 79 n. 18, 84 S.Ct.

1609 n. 18, 12 L.Ed.2d 695 n. 18. Once that is done, the

9a

Government must affirmatively show that its evidence is

untainted and independent of the immunized testimony.

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

L.Ed.2d 212 (1972); Murphy v. Waterfront Comm’n,

supra; United States v. Rivera, 1 M.J. 107 (C.M.A. 1975);

United States v. Gardner, 18 M.J. 612 (A.F.C.M.R.), pet.

granted, 19 M.J. __ (1984).

For our purposes, the key word is “demonstrate.” Ap-

pellate defense counsel are well aware of their quandry; as

a result, they argue that the demonstration need not occur

in the courtroom. Their argument urges that the chain of

command’s awareness of the accused’s previous grant of

testimonial immunity prior to referring the case to trial

satisfies the demonstration requirement, and that the

Government’s burden, in effect, exists prior to entering the

courtroom.

The end result of this argument, notwithstanding ap-

pellate defense counsel’s refusal to concede such, is that

the Murphy/Kastigar rule would become self-executing.

We reject this argument and hold that the issue must be

raised at the trial level by defense counsel in order to key

the Government’s burden.

The very wording of the test leads to the conclusion that

the defense must raise the issue in order to pit the Govern-

ment against its heavy burden. If there is any uncertainty

after reading the threshold test, it is dispelled by the con-

curring Opinion in Murphy and subsequent explanation in

Kastigar v. United States, supra. Mr. Justice White

elaborated on the test promulaged in Murphy v. Water-

front Comm’n, and emphasized its similarity to other con-

stitutional violations. He stated as follows:

As in the analogous search and seizure and wiretap

cases where the burden of proof is on the Government

once the defendant establishes the unlawful search

and wiretap, [citations omitted] once a defendant

demonstrates that he has testified .. . in exchange

10a

for immunity... the Government can be put to

show that its evidence is not tainted . . . (Emphasis

added).

Murphy v. Waterfront Comm’n, supra at 103 (White, J.,

concurring).

In Kastigar, the Court chose to use the coerced confes-

sion rule as its analogy, but it retained the same threshold

by stating as follows:

One raising a claim under this statute need only show

that he testified under a grant of immunity in order to

shift to the Government the heavy burden of proving

that all of the evidence it proposes to use was derived

from legitimate independent sources. (Emphasis

added).

Kastigar v. United States, supra at 461-462. The Court em-

phasized the extreme advantage enjoyed by a previously

immunized defendant by advising that unlike those who

claim a confession was coerced, the immunized defendant

need not prove his testimony was used. All he need do is

claim that it was.'

It is more than fair to infer that the Supreme Court was

aware that the Government would know before trial that

the defendant had previously testified under immunity.

Nevertheless it chose to use terms such as “the defendant

must demonstrate,” and “put the Government to show,”

and “shift to the Government.” It would have been quite

simple for the Court to instruct that the Government will

put the trial court on notice of prior immunized testimony

in all cases. Not having done so, we must conclude that the

defense must at least inform the trial court of prior im-

munized testimony by the accused. In adopting the rule

for trials by court-martial, the Court of Military Appeals

' In military practice the burden of proof is always on the prosecu-

tion, even On motion to suppress. However, the defense is still re-

quired to key the burden via a motion to suppress or other objection.

Mil. R. Evid. 304(d).

lla

did not indicate a stricter standard. See United States v.

Whitehead; United States v. Rivera, both supra.

Appellate defense counsel, however, urge that the issue

is one of constitutional dimension; and, as such, it may be

raised for the first time on appeal. We disagree.

A constitutional right may be waived for appellate

review if not raised at the proper time. Curtis Publishing

Co. v. Butts, 388 U.S. 130, 143, 87 S.Ct. 1975, 1985, 18

L.Ed.2d 1094, 1104 (1966); United States v. Sloan, 22

U.S.C.M.A. 587, 48 C.M.R. 211 (1974). This is especially

so in the face of a guilty plea which admits the facts on

which the constitutional right claimed to be violated is

based.? United States v. Hamil, 15 U.S.C.M.A. 110, 35

C.M.R. 82 (1964); United States v. Leong, 47 C.M.R. 464

(A.F.C.M.R.), pet. denied, __ C.M.R. __ (1973); see

United States v. Stewart, 20 U.S.C.M.A. 272, 43 C.M.R.

112, 114 (1971).

The prohibition against the use of immunized testimony

is cO-extensive with the right against self-incrimination.

Kastigar v. United States; United States v. Rivera, both

supra. As such, “Immunity must be as broad as, but not

harmfully and wastefully broader than the privilege

against self-incrimination.” Murphy v. Waterfront

Comm’n, supra at 107 (White, J., concurring). Like other

constitutional violations, e.g., improper searches, a viola-

tion of the right against self-incrimination may be waived

for appellate review by a failure to object. United States v.

Gross, 14 U.S.C.M.A. 660, 34 C.M.R. 440 (1964); United

States v. Dial, 9 U.S.C.M.A. 700, 26 C.M.R. 480 (1958);

see United States v. Caiola, 18 U.S.C.M.A. 336, 40

C.M.R. 48 (1969). The same rule holds true for objections

to derivative evidence. See United States v. Dial, supra. \f

an objection based on a violation of the right against self-

? As mentioned, the accused pled guilty to all but one of the charged

offenses.

12a

incrimination and derivative evidence therefrom is not

interposed at trial, it is waived. Mil. R. Evid. 304(d)(2),

and (e).

Unless the Court of Military Appeals clearly adopts or

imposes a stricter standard on courts-martial,? our review

of the precedents convinces us that the issue must be raised

by the defense. Having failed to do so in the instant case,

the issue may be waived under M.R.E. 103{a).

We now consider whether we should take action under

M.R.E. 103(d), the absence of an objection notwithstand-

ing. Rule 103(d) states as follows:

Plain error. Nothing in this rule precludes taking

notice of plain errors that materially prejudice

substantial rights although they were not brought to

the attention of the military judge.

The plain error rule is an exceptional remedial measure

which should be used only in exceptional circumstances to

prevent great miscarriages of justice. Thus, courts must

exercise restraint in using it. United States v. Bolden, 16

M.J. 722 (A.F.C.M.R. 1983), and cases cited therein.

Appellate defense counsel argued impassionately that

this accused was denied his due process rights to a fair trial

in all respects. Appellate defense counsel repeatedly urged

that the instant case is a clear example of the Government

“having its cake and eating it too.” The justification con-

stantly alluded to was the ubiquitous involvement of trial

counsel, Captain S. Considering our adversary criminal

system of justice, appellate defense counsel’s indignation

is somewhat understandable. As a substantive matter,

3 United States v. Gardner, 18 M.J. 612 (A.F.C.M.R.), pel.

granted, 19 M.J. __ (1984) is presently pending before the Court of

Military Appeals. Until its decision, however, we will adhere to

precedents presently applicable.

13a

however, the facts just do not support their premise that

the accused was denied a fair trial.

Initially, we do not speculate what subjective impact the

accused’s immunized testimony had on trial counsel, for

that is a proper matter for an evidentiary hearing.* Since

we are assessing for plain error, we look to the record.

In order for appellate defense counsel’s argument to

have substance, one must ignore the fact that the Govern-

ment had marshalled a substantial case against the accused

prior to the grant of testimonial immunity. Therefore, this

is not a case where the Government blatantly used the

power of testimonial immunity as an investigative tool to

sift through suspects. See United States v. Rivera, supra.

If so, the case could very well rise to the level of plain

error. United States v. Bolden, supra. Likewise, there is no

indication that the “subjective use” by trial counsel, via his

presence, intimidated the accused into pleading guilty or

from testifying in his own behalf.

Prior to the accused’s request for and the grant of

testimonial immunity, he had tendered his cooperation in

exchange for nothing more than the hope for leniency,

because he knew the Government “had the goods on him.”

We view that factor as the moving force behind his guilty

plea rather than his having testified under immunity. Sec-

ond, the accused’s testimony at trial tracked consistently

with his confession. He steadfastly denied knowing that

Aea was going to Fort Lauderdale, Flordia to procure co-

caine until after the trip was accomplished.’ Conse-

* Appellate government counsel’s Motion For Leave To File Af-

fidavit is hereby DENIED.

* The Government’s theory on this charge of distributing cocaine

was that the accused aided and abetted Aea’s trip to Fort Lauderdale,

Florida to procure cocaine for distribution back at Lowndes County,

Georgia. Therefore, if the accused’s denial of knowledge as to Aea’s

purpose for the trip is believed, he could not have aided and abetted.

l4a

quently, it does not appear that the accused was in-

timidated by the knowledge that Captain S had taken his

testimony at Aea’s trial as well as having interviewed him,

thereby giving the Government an advantage it would not

have otherwise enjoyed.°

As mentioned, the accused was represented by counsel

through this sequence of events. We have good reason to

infer that trial defense counsel was knowledgeable of the

ramifications of his client testifying pursuant to a grant of

testimonial immunity. In fact, his advice to the accused

was to exercise caution even in the face of the grant of

testimonial immunity. During his testimony, the accused

stated as follows:

A. Ihadaconference with my attorney and he advised

me not to say anything I hadn’t already said.

Q. ... When was this conference... ?

A. It was around the 15th of November 1983.

Having weighed all of these factors, we find that this

case fails to rise to the level of plain error which materially

prejudiced the substantial rights of the accused. To make

® Appellate defense counsel also averred that the trial counsel, Cap-

tain S, was disqualified to act in the accused’s trial as a result of his in-

volvement with handling the accused’s immunized testimony in United

States v. Aea, and that Captain S had an affirmative duty to disclose

his disqualification. The argument assumes that Captain S was, in

fact, disqualified, the he knew or should have known he was dis-

qualified, and his failure to inform the court substantially prejudiced

the accused. Trial defense counsel was fully aware of Captain S’ in-

volvement, and raised no objection to his acting as trial counsel. Sec-

ond, as the precedents presently stand, there is no per se rule of dis-

qualification for one who has had access to immunized testimony,

although that may be one way of removing a possible taint. See United

States v. Gardner, supra n. 9. Third, the accused was represented by

his own counsel; thus, he was not misled into possibly concluding that

he could safely divulge confidences to Captain S. Under these cir-

cumstances, there is no need to disregard the failure to object. Bui see

United States v. Stringer, 4 U.S.C.M.A. 494, 16 C.M.R. 68 (1954);

United States v. Fowler, 6 M.J. 501 (A.F.C.M.R. 1978).

lSa

it perfectly clear, we do not condone the manner in which

the accused’s case was handled. Nonetheless, our review of

the record leaves us convinced that the accused was not

denied a fair trial; ergo, relief under M.R.E. 103(d) is not

appropriate.

There has been a marked increase in the use of immun-

ized testimony since United States v. Newman, 14 M.J.

474 (C.M.A. 1983). Consequently, it is imperative that

staff judge advocates, especially those to general court-

martial convening authorities, be completely attuned to

the ramifications of granting testimonial immunity to a

potential accused prior to that accused’s own trial. All

concerned must realize that the grant of testimonial im-

munity will completely change the complexion of the im-

munized witness’ subsequent trial, for much will be re-

quired of the Government if the issue is raised.

We are disturbed by the apparent unawareness of those

responsible for administering the instant case. The instant

case was tried prior to our decision in United States v.

Gardner, supra. We recommend a review of our com-

ments therein. United States v. Gardner, supra n. 10.

The second part of this assignment of error is that the

Government made improper use of the accused’s sup-

pressed confession. We fail to see any merit to this asser-

tion. The confession was admitted into evidence over time-

ly objection after the accused’s testimony on the merits.

The trial judge stated specifically that he was admitting it

as a prior inconsistent statement. Since the confession was

suppressed due to a defect in the advice to counsel, it was

fully admissible for impeachment purposes. M.R.E.

304(b). Second, the accused’s testimony included substan-

tially all of the information which the confession con-

tained, thereby providing a judicial confession. We fail to

discern any prejudice to the accused.

l6a

IV

Appellate defense counsel also aver that the trial judge

erred by striking the partial testimony of a defense witness

without first invoking other remedies. We disagree.

Trial defense counsel called Airman Vest for the pur-

pose of proving Aea’s motive for bias against the accused.

M.R.E. 608(c). Although there were some attempts by

Vest to exercise her right against self-incrimination during

direct examination, trial defense counsel was successful in

eliciting the desired evidence. Trial counsel, however, was

not as successful on cross-examination. As a result, the

trial judge granted, in part, trial counsel’s motion to strike

Vest’s testimony. The trial judge ruled that he would

disregard Vest’s testimony as it related to her claim that

Aea said he could testify to drug matters that never oc-

curred, but the accused could never contradict them or

prove he (Aea) was lying; and, Vest’s testimony that Aea

called another individual and asked that person to take

care of the accused, which she interpreted as a request to

do bodily harm to the accused.

_ We need not decide whether the trial judge should have

taken other alternatives, for the record amply demon-

strates that the accused was not denied the evidence he

sought. See United States v. Richardson, 15 M.J. 41—

(C.M.A. 1983).

Aea testified against the accused. Portions of his cross-

examination proceeded as follows:

Q. Now, you were about to be discharged before your

court-martial, is that correct?

Separated.

At the expiration of your term of service?

5 November ’83.

And how many days before your separation did

you come under investigation?

Approximately 25 days.

And that stopped you from leaving, didn’t it?

A.

Q.

A.

Q.

A.

Q.

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DP OPO PePy

oF Be ie

Pe ar ae

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Yes sir.

And that made you pretty mad, didn’t it?

Yes sir. :

In fact, you’re still mad about it, aren’t you?

It wore off.

Now, the main witness in your trial was Sergeant

Lucas, wasn’t it?

Yes sir.

And isn’t it true that in your opinion if Sergeant

Lucas had not come forward, you would not have

been court-martialed?

Yes sir.

And that if it had not been for Sergeant Lucas,

your case wouldn’t have gone to trial?

Yes sir.

And if it weren’t for Sergeant Lucas, no one would

have found out about you.

They knew about me but I don’t think they had

enough on me.

So you were pretty mad about having that happen

and to be court-martialed and to stick around,

wouldn’t you?

Yes sir.

Isn’t it true that while you were in jail, you had a

lot of thoughts about how you were going to get

back at Sergeant Lucas?

Yes sir.

After you got out of jail, you called Tony Lombard

on the phone, didn’t you?

No sir.

Before, I’m sorry, before you went to jail you

called Tony Lombard, didn’t you?

Yes sir.

And you talked about your case, didn’t you?

Yes sir.

OP

TO> OP OP OP D> O> OP OC> OP OD.

18a

Do you know anything about Tony Lombard’s

family?

No sir.

And isn’t it true that during the phone call, you

asked Tony Lombard to take care of Sergeant

Lucas?

No sir.

Didn’t you express to him your anger against

Sergeant Lucas?

Yes sir.

Didn’t you express to him that you wished there

could be something done about it?

No sir. I just told him I was in trouble.

And isn’t that true that you decided you would get

even with Sergeant Lucas after the trial?

By testifying against him.

And isn’t it true that you didn’t want to just get

even, you wanted revenge?

No sir.

Isn’t it true that you told people you were going to

put him away?

In jail, yes sir.

Now you made a statement to the OSI about

Lucas, didn’t you?

Yes sir.

That statement was made while you were in jail,

wasn’t it?

Yes sir.

And your testimony today is part of your plan to

get even with Lucas, isn’t it?

Yes sir.

And you are not opposed to exaggerating in order

to take care of that, are you?

No sir. Excuse me?

And isn’t it a fact that you told—

Excuse me. I’m sorry, Your Honor. I think the

witness has some confusion about that last ques-

tion.

19a

MJ You'll have an opportunity for redirect.

TC Very well, Your Honor.

DC Airman Aea, isn’t it a fact that you told Kathy

Vest that Lucas was not selling the marijuana or

the cocaine but he wouldn’t be able to prove it.

A. No sir.

Under these circumstances, Aea’s potential bias was

fully litigated. The factfinder had more than adequate

evidence on which to fully assess Aea’s worthiness of

belief.’ The accused suffered no prejudice.

We have considered the remaining assignment of error -

and find it to be without merit.

IV

The findings of guilty and the sentence are AFFIRMED.

FORAY, Senior Judge, and O’HAIR, Judge, concur.

OFFICIAL

/s/ CHARLES L. WILLE -

Charles L. Willie

Captain, USAF

Chief Commissioner

? The record clearly indicates that trial defense counsel was aware

of the potential problems with eliciting Vest’s testimony well before

trial. The difficulty at trial may have been avoided had trial defense

counsel requested testimonial immunity for her prior to trial. See

United States v. Villines, 13 M.J. 46 (C.M.A. 1982).

US GOVERNMENT PRINTING OFFICE. 1987— 196-658/62013