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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1027

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0420%3A1. Public record. Not legal advice.